DeFrancesco v. Arizona Board of Regents

• Court: District Court, D. Arizona
• Decided: August 12, 2020
• Docket: 4:20-cv-00011
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Anthony T DeFrancesco, No. CV-20-00011-TUC-CKJ

10 Plaintiff, ORDER

11 v.

12 Arizona Board of Regents, et al.,

13 Defendants.

15 16 Before the Court is Defendants’ Arizona Board of Regents, Dr. Robert Robbins, and 17 Dr. Michael Dake, Motion to Dismiss Complaint (Doc. 16). For the following reasons, 18 Defendants’ Motion is GRANTED IN PART AND DENIED IN PART. Plaintiff’s First 19 Amendment retaliation and freedom of association claims are dismissed with prejudice. 20 Plaintiff’s equal protection and Title VII claims are dismissed without prejudice. The 21 Court allows Plaintiff thirty days to file an amended complaint. 22 BACKGROUND1 23 In January 2015, Plaintiff Anthony DeFrancesco was hired as the Senior Director 24 of Operations for the University of Arizona Health Sciences (“UAHS”). (Doc. 1, ¶ 14). 25 Later that year, Plaintiff also assumed the duties of the Associate Vice President of Finance 26 and Administration (“AVP”) when the former AVP resigned. Id. ¶ 18. By December 2018,

27 1 In analyzing this motion, the Court takes all allegations of material fact as true and 28 construes them in the light most favorable to Plaintiff. 1 the University had yet to hire a replacement for the former AVP and Plaintiff was still 2 performing the duties of that role. Id. ¶ 20. Plaintiff alleges he did not receive a single 3 complaint during his tenure at the University. Id. ¶ 23. 4 In 2017, Dr. Robbins, the president of the University of Arizona, put together a 5 search committee to find a new Senior Vice President to run UAHS. Id. ¶ 26. At the time, 6 Plaintiff’s husband was a Senior Vice President and the Chief Financial Officer for the 7 University and was the co-chair of the search committee. Id. ¶ 27. 8 Plaintiff alleges that Dr. Robbins rigged the hiring process so that Dr. Dake, 9 Robbins’ best friend, would get the job as Senior Vice President. Id. ¶ 31. Plaintiff also 10 contends that his husband informed Dr. Robbins that Dr. Dake did poorly in his job 11 interviews and would not be among the finalists for the position. Id. ¶ 33. Plaintiff states 12 that his husband told Dr. Robbins that if he were to hire Dr. Dake, it would be the worst 13 mistake he could make and would very likely cost him his presidency. Id. ¶ 39. 14 In March 2018, despite the warnings, Dr. Robbins hired Dr. Dake and allegedly 15 informed him that Plaintiff’s husband had been a vocal advocate against his candidacy. Id. 16 ¶ 42. Dr. Robbins also allegedly told Dr. Dake that, as Senior Vice President over UAHS, 17 he had the authority to fire Plaintiff. Id. 18 By October 2018, Plaintiff’s husband had voluntarily left the University, and on 19 October 26, 2018, Plaintiff met with Dr. Dake to discuss Plaintiff’s longstanding complaint 20 that he be given a pay increase and promotion to reflect the fact that he was serving as the 21 AVP of Finance and Administration in addition to his other duties. Id. ¶ 46. At the 22 meeting, Plaintiff requested to be formally recognized as the AVP since he had been 23 successfully completing the tasks of that position for more than two years. Id. ¶ 47. Dr. 24 Dake demurred and said he would keep the position open, as he was looking for someone 25 who was “strategic” and a “broad’ thinker.” Id. ¶¶ 48, 49. During the conversation, Dr. 26 Dake also allegedly threatened Plaintiff by informing him that now that Plaintiff’s husband 27 had left the University, he had “a decision to make.” Id. ¶ 50. Plaintiff alleges that Dr. 28 Dake’s tone made it clear that he was not welcome at the University while Dake was Senior 1 Vice President over the department. Id. 2 Plaintiff insinuates that he was asked to resign at or after his October 26th meeting 3 with Dr. Dake. Id. ¶¶ 50-52. He asserts that when he refused to resign, Dake orchestrated 4 a campaign of harassment to make his life miserable. Id. ¶ 52. The alleged harassment 5 included undermining Plaintiff in meetings; asking questions to Plaintiff’s subordinates in 6 Plaintiff’s presence, as if Plaintiff were not there; and communicating with Plaintiff’s 7 subordinates without Plaintiff’s knowledge. Id. Plaintiff asserts he was humiliated by this 8 conduct. Id. ¶ 53. 9 On June 30, 2019, Dr. Dake terminated Plaintiff, making Plaintiff “the only 10 homosexual male at his level of seniority in UAHS who was terminated at that time.” Id. 11 ¶¶ 55, 56. 12 PROCEDURAL HISTORY 13 On February 19, 2020, Defendants’ filed their Motion to Dismiss Complaint. (Doc. 14 16) On March 4, 2020, Plaintiff filed his response (Doc. 17); and on March 23, 2020, 15 Defendants filed their reply (Doc. 20). On June 18, 2020, with the Court’s permission, 16 Plaintiff filed his sur-reply to Defendants’ reply (Doc. 25); and on June 25, 2020, 17 Defendants filed their response to the sur-reply (Doc. 27). On July 14, 2020, the Court 18 held oral arguments on Defendants’ Motion to Dismiss and took the matter under 19 advisement. (Minute Entry 07/14/2020) This Order follows. 20 LEGAL STANDARD 21 Under Federal Rule of Civil Procedure 12(b)(6), a defendant can move for dismissal 22 of a complaint for failure to state a claim upon which relief can be granted. Dismissal is 23 appropriate when the complaint fails to provide “sufficient factual matter, accepted as true, 24 to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 25 (2009) (quotation marks and citation omitted). “A claim has facial plausibility when the 26 plaintiff pleads factual content that allows the court to draw the reasonable inference that 27 the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not 28 akin to a probability requirement, but it asks for more than a sheer possibility that a 1 defendant has acted unlawfully.” Id. (quotation marks and citation omitted). 2 “In assessing whether a party has stated a claim upon which relief can be granted, a 3 court must take all allegations of material fact as true and construe them in the light most 4 favorable to the nonmoving party; but conclusory allegations of law and unwarranted 5 inferences are insufficient to avoid a Rule 12(b)(6) dismissal.” Turner v. City and Cnty. of 6 San Francisco, 788 F.3d 1206, 1210 (9th Cir. 2015) (quotation marks and citation omitted). 7 Not only must a complaint “contain sufficient allegations of underlying facts to give fair 8 notice and to enable the opposing party to defend itself effectively[,]” its “factual 9 allegations . . . must plausibly suggest an entitlement to relief such that it is not unfair to 10 require the opposing party to be subjected to the expense of discovery and continued 11 litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 12 The Court is not required “to accept as true allegations that are merely conclusory, 13 unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State 14 Warriors, 266 F.3d 979, 988 (9th Cir.2001) (citation omitted). Furthermore, a plaintiff 15 may plead himself out of court if he pleads facts which establish that he cannot prevail on 16 his claim. Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n.1 (9th Cir. 1997). If a court 17 dismisses a complaint, it should give leave to amend unless the “pleading could not 18 possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. N. Cal. 19 Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). 20 ANALYSIS 21 Plaintiff outlines three causes of action against Defendants in his complaint: (i) a 22 First Amendment retaliation claim against Dr. Robbins and Dr. Dake in their individual 23 capacities; (ii) an Equal Protection claim also against Dr. Robbins and Dr. Dake in their 24 individual capacities; and (iii) an employment discrimination claim under Title VII of the 25 Civil Rights Act of 1964 against the Arizona Board of Regents. 26 Plaintiff’s constitutional claims arise under 42 U.S.C. § 1983. Section 1983 holds 27 any person liable who, under color of any statute, deprives any citizen of any rights, 28 privileges, or immunities secured by the Constitution and laws of the United States. 1 42 U.S.C.A. § 1983 (West). Section 1983 does not create any substantive rights, “it merely 2 provides remedies for deprivations of rights established elsewhere.” Okla. City v. Tuttle, 3 471 U.S. 808, 816, (1985) (citation omitted). “To state a claim under § 1983, a plaintiff 4 must allege the violation of a right secured by the Constitution and laws of the United 5 States, and must show that the alleged deprivation was committed by a person acting under 6 color of state law.” West v. Atkins, 487 U.S. 42, 48, (1988) (citation omitted). The parties 7 disagree whether Plaintiff has sufficiently alleged clearly defined constitutional rights and, 8 if he has, whether his allegations demonstrate Defendants violated them. 9 I. Constitutional Violations 10 The gravamen of Plaintiff’s complaint is the assertion that he was terminated 11 because of the protected conduct of his husband in violation of the First Amendment. (Doc. 12 1, ¶¶ 43, 65-66) In subsequent motions and during oral arguments on the matter, Plaintiff 13 clarified that his First Amendment claim constitutes “a case where [he] alleges retaliation 14 because of the First Amendment-protected speech of his spouse.” (Doc. 17 at 7) Plaintiff 15 also declared that his First Amendment claim was only “a free speech retaliation claim” 16 (oral arguments), and that his suit in general was “not a right of intimate association case” 17 (oral arguments). In Defendants’ Motion to Dismiss, Defendants argue they are shielded 18 from suit by the doctrine of qualified immunity, as Plaintiff’s retaliation claim does not 19 arise from a clearly established right. (Doc. 16 at 6-11) They also argue that, even if they 20 are unprotected by qualified immunity, Plaintiff’s complaint fails to state claims upon 21 which relief can be granted. Id. at 1-6. 22 While Plaintiff rejects the implication that his First Amendment retaliation claim is 23 connected to a freedom of association claim, the Court finds otherwise. At the very least, 24 Plaintiff’s claim of First Amendment retaliation is intertwined with his right to freedom of 25 association. Notwithstanding this fact, both claims fail. Plaintiff fails to demonstrate his 26 husband spoke as a private citizen on a matter of public concern, and as such, Defendants’ 27 Motion to Dismiss his First Amendment retaliation claim is granted. Additionally, 28 Defendants are entitled to qualified immunity on Plaintiff’s freedom of association claim. 1 As such, that claim fails as well. The Court declines to grant Plaintiff leave to amend these 2 two claims, as they could not possibly be cured by the allegation of other facts. The Court 3 analyzes all of Plaintiff’s claims in the order in which they were presented in his complaint. 4 A. First Amendment Retaliation 5 The First Amendment shields public employees from employment retaliation for 6 their protected speech. Connick v. Myers, 461 U.S. 138, 142 (1983). “There are three 7 elements to a First Amendment retaliation claim[.]” O’Brien v. Welty, 818 F.3d 920, 932 8 (9th Cir. 2016) (citing Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755 (9th Cir. 2006)). 9 To state a claim against a government employer for First Amendment retaliation, an 10 employee must allege that: (1) he engaged in protected speech; (2) the employer took 11 adverse employment action; and (3) his speech was a substantial or motivating factor for 12 the adverse employment action. Turner v. City and Cnty. of S.F., 788 F.3d 1206, 1210 13 (9th Cir. 2015). “Once a plaintiff has made such a showing, the burden shifts to the 14 government to show that it would have taken the same action even in the absence of the 15 protected conduct.” O'Brien, 818 F.3d at 932. If the plaintiff fails to carry his burden at 16 any step, he is not entitled to recovery, Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009), 17 and his claim must be dismissed, see Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (“The 18 first [step] requires determining whether the employee spoke as a citizen on a matter of 19 public concern. If the answer is no, the employee [does not have a] First Amendment cause 20 of action based on his . . . employer's reaction to the speech.”) (citation omitted). 21 1. Matters of Public Concern 22 “A public employee’s speech is protected under the First Amendment if the 23 employee spoke ‘as a citizen upon matters of public concern.’ ” Turner, 788 F.3d at 1210 24 (quoting Connick, 461 U.S. at 147). Whether the speech of Plaintiff’s husband addressed 25 matters of public concern is a question of law that must be determined by analyzing “the 26 content, form, and context of a given statement, as revealed by the whole record.” Connick, 27 461 U.S. at 148. Of these three factors, the content of the speech is the most important. 28 Johnson v. Multnomah Cnty., Or., 48 F.3d 420, 424 (9th Cir. 1995). 1 In Desrochers v. City of San Bernardino, 572 F.3d 703, 705 (9th Cir. 2009), the 2 plaintiffs filed an internal grievance against their supervisor for a personality conflict that 3 was impacting the efficiency and effectiveness of their police units. Id. at 705-06. After 4 the supervisor transferred out of the plaintiffs’ bureau, they turned their attention to filing 5 similar grievances against other police supervisors. Id. at 706. In analyzing whether 6 plaintiffs’ grievances addressed matters of public concern, the Ninth Circuit observed:

7 To address a matter of public concern, the content of the 8 [plaintiff’s] speech must involve issues about which information is needed or appropriate to enable the members of 9 society to make informed decisions about the operation of their 10 government. On the other hand, speech that deals with individual personnel disputes and grievances and that would be 11 of no relevance to the public's evaluation of the performance 12 of governmental agencies is generally not of public concern. The same is true of speech that relates to internal power 13 struggles within the workplace, and speech which is of no 14 interest beyond the employee's bureaucratic niche.

15 Desrochers, 572 F.3d at 710 (quotation marks and citations omitted). The Ninth Circuit 16 found that the plaintiffs’ speech failed to address matters of public concern because the 17 court could not conclude that the proper functioning of the police department was 18 jeopardized by the actions of the supervisors. Id. at 712. In coming to its conclusion the 19 court reiterated, “[T]he content of the communication must be of broader societal concern. 20 [Our] focus must be upon whether the public or community is likely to be truly interested 21 in the particular expression, or whether it is more properly viewed as essentially a private 22 grievance.” Id. at 713 (citation omitted). 23 Plaintiff alleges he was fired from his position at the University because his husband 24 told President Robbins that a candidate for an executive-level position (Dr. Dake) did 25 poorly in his job interviews. (Doc. 1, ¶ 33) Plaintiff also contends that his termination was 26 related to his husband’s comments to Dr. Robbins that hiring Dr. Dake would be the worst 27 mistake he could make and that it could very likely cause Robbins the presidency. Id. ¶¶ 28 39, 42. These comments fail to address matters of public concern. 1 The speech of Plaintiff’s husband fails to address matters of public concern because 2 it did not implicate matters of political, social, or other public concern to the community. 3 Instead, the comments focused on matters of personal interest as to how the president ran 4 the department and whether Dr. Dake was a good candidate for the position of Senior Vice 5 President. Plaintiff fails to contend that his husband spoke to the public at large about the 6 University’s purported rigged hiring process or the incompetence of its incoming senior 7 executive (Dake). Assuming, arguendo, the rigged hiring process was the husband’s 8 motivation for speaking out against Dr. Dake, the motivation itself cannot be evaluated in 9 the context of speech when it was never explicitly communicated. 10 The speech of Plaintiff’s husband is similar to the internal grievances in Desrochers. 11 The comments failed to address issues in which the public would likely be truly interested. 12 Instead, the comments informed Dr. Robbins, the head of the University and the grievant’s 13 boss, that he thought one of the SVP candidates was unqualified and that it would be a 14 mistake to hire him. Even if the Court were to accept Plaintiff’s conclusory argument that 15 his husband’s speech was outside of his official duties as the CFO of the University, the 16 Court finds the comments were related to his husband’s official duties as co-chair of the 17 search committee charged with vetting the candidates. 18 Finally, the form and context of the speech demonstrate that Plaintiff’s husband 19 reported his feedback under the chain of command and that he did not speak out in 20 contravention to his bosses’ wishes. Plaintiff’s husband simply voiced an honest and 21 unpopular opinion to the president of the University. Such comments are not protected by 22 the First Amendment to the Constitution. Accordingly, Plaintiff’s complaint fails to 23 plausibly allege that his husband spoke as a private citizen on a matter of public concern, 24 and his claim of First Amendment retaliation fails. 25 B. Freedom of Association 26 In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme Court 27 determined that the Constitution protects freedom of association in two distinct senses. It 28 ruled: 1 [T]he Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured 2 against undue intrusion by the State because of the role of such 3 relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of 4 association receives protection as a fundamental element of 5 personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in 6 those activities protected by the First Amendment—speech, 7 assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of 8 association of this kind as an indispensable means of 9 preserving other individual liberties. . . . The intrinsic and instrumental features of constitutionally protected association 10 may, of course, coincide. 11 12 Roberts, 468 U.S. at 617–18. The first form of freedom of association is classified as 13 freedom of intimate association, which is protected under the Substantive Due Process Clause of the Fourteenth Amendment. Erotic Serv. Provider Legal Educ. & Research 14 15 Project v. Gascon, 880 F.3d 450, 458 (9th Cir. 2018), amended, 881 F.3d 792 (9th Cir. 16 2018). The second form of freedom of association is classified as freedom of expressive association, which is protected under the Freedom of Speech Clause of the First 17 18 Amendment. Id. 19 Roberts is the basis for at least two circuit courts of appeal decisions which hold that a plaintiff has a cause of action for a violation of his First Amendment right to freedom 20 21 of association when he suffers an adverse employment action based on the activity of his 22 spouse. See, e.g., Adler v. Pataki, 185 F.3d 35, 44 (2d Cir. 1999) (holding that “a spouse's claim that adverse action was taken solely against [him] in retaliation for [the] conduct of 23 24 [his] spouse should be analyzed as a claimed violation of a First Amendment right of 25 intimate association”); Adkins v. Bd. of Educ. of Magoffin Cty., Ky., 982 F.2d 952, 956 (6th Cir. 1993) (holding that while the plaintiff “had no property right to continued 26 27 employment[,] she had a liberty interest in not being denied employment for exercising her 28 First Amendment right to freedom of association[,]” when she suffered an adverse 1 employment action based on the activities of her husband). 2 District courts have also found that retaliation against a public employee for the 3 speech of a close family member violates the right to freedom of association. See, e.g., 4 Isakhanova v. Muniz, No. 15-CV-03759-TEH, 2016 WL 1640649, at *4 (N.D. Cal. Apr. 5 26, 2016) (holding that a plaintiff can be denied her First Amendment rights when the 6 individual “suffer[s] retaliation for his or her perceived association with the speech of a 7 close family member”); Lewis v. Eufaula City Bd. of Educ., 922 F. Supp. 2d 1291, 1302 8 (M.D. Ala. 2012) (“[T]he First Amendment may also be violated where the speech that 9 invoked the government's retaliatory response was not made by the plaintiff herself, but 10 rather by a person in a close relationship with the plaintiff, and the government retaliated 11 against the plaintiff for her perceived association with the other person and that person's 12 speech”). 13 While Plaintiff’s allegations—taken in the light most favorable to him—may 14 constitute a violation of the Constitution, neither the Supreme Court nor the Ninth Circuit 15 have clearly delineated the parameters of associational rights vis-à-vis a First Amendment 16 retaliation claim. Accordingly, Defendants are entitled to qualified immunity on this cause 17 of action. 18 1. Qualified Immunity 19 In Capp v. County of San Diego, 940 F.3d 1046 (9th Cir. 2019), the Ninth Circuit 20 addressed the doctrine of qualified immunity in detail. It observed:

21 The doctrine of qualified immunity protects government 22 officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or 23 constitutional rights of which a reasonable person would have 24 known. It gives government officials breathing room to make reasonable but mistaken judgments about open legal questions, 25 and, [w]hen properly applied, [ ] protects all but the plainly 26 incompetent or those who knowingly violate the law. . . . . 27 The Supreme Court has articulated a discretionary two-step 28 sequence for resolving government officials’ qualified immunity claims. First, a court must decide whether the facts 1 that a plaintiff has alleged or shown make out a violation of a constitutional right. Second, if the plaintiff has satisfied this 2 first step, the court must decide whether the right at issue was 3 clearly established at the time of defendant’s alleged misconduct. 4

5 Capp, 940 F.3d at 1053 (quotation marks and citations omitted). For a right to be clearly 6 established: 7 [It] must be sufficiently clear that every reasonable official 8 would have understood that what he is doing violates that right. 9 In rare cases, a violation may be so obvious that every reasonable official would be on notice that the conduct in 10 question was unlawful. Normally, however, an official is on 11 notice only when existing precedent has placed the statutory or constitutional question beyond debate. Thus, to survive a 12 motion to dismiss based on qualified immunity, a plaintiff must 13 point to prior case law that articulates a constitutional rule specific enough to alert these [officials] in this case that their 14 particular conduct was unlawful. 15 Stuart v. City of Scottsdale, No. CV-20-00755-PHX-JAT, 2020 WL 4446506, at *7 16 (D. Ariz. Aug. 3, 2020) (quotation marks and citations omitted). 17 Plaintiff contends that cases such as Roberts v. United States Jaycees, 468 U.S. 609 18 (1984), Moonin v. Tice, 868 F.3d 853 (9th Cir. 2017), Ellins v. Sierra Madre, 710 F.3d 19 1049 (9th Cir. 2013), Karl v. City of Mountlake Terrace, 678 F.3d 1062 (9th Cir. 2012), 20 Clairmont v. Sound Mental Health, 632 F.3d 1091 (9th Cir. 2011), Robinson v. York, 566 21 F.3d 817 (9th Cir. 2009), Settlegoode v. Portland Public Schools, 371 F.3d 503 (9th Cir. 22 2004), Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003), Hufford v. McEnaney, 249 23 F.3d 1142 (9th Cir. 2001), Hollister v. Tuttle, 210 F.3d 1033 (9th Cir. 2000), Nunez v. 24 Davis, 169 F.3d 1222 (9th Cir. 1999), Gilbrook v. City of Westminster, 177 F.3d 839 (9th 25 Cir. 1999), Metro Display Advertising, Inc. v. City of Victorville, 143 F.3d 1191 (9th Cir. 26 1999), Lambert v. Richard, 59 F.3d 134 (9th Cir. 1995), Duran v. City of Douglas, Arizona, 27 904 F.2d 1372 (9th Cir. 1990), IDK, Inc. v. Clark County, 836 F.2d 1185 (9th Cir. 1988), 28 1 and a few of the cases already addressed in this section, support the proposition that a 2 plaintiff may bring a First Amendment retaliation claim for the protected activity of his 3 spouse. (Doc. 17 at 10-13) However, upon review of these decisions, the Court fails to 4 locate any controlling opinion that clearly stands for Plaintiff’s proposition. While some 5 cases endorse First Amendment rights, see, e.g., Moonin, Ellins, Karl, Clairmont, 6 Robinson, Coszalter, and Hufford, or a right to freedom of association, see, e.g., Roberts 7 and IDK, none of the cases establish precedent which has placed the constitutional question 8 (whether Plaintiff has a constitutional right under the First Amendment to be free from 9 retaliation for the protected speech of his spouse) beyond debate. Even if such precedent 10 were clearly established, Plaintiff’s claim would still fail, as the Court has determined that 11 the speech of Plaintiff’s husband is unprotected. Accordingly, Plaintiff’s freedom of 12 association claim fails, and because the claim could not possibly be cured by the allegation 13 of other facts, it is dismissed with prejudice. 14 II. Equal Protection under the Fourteenth Amendment 15 “The purpose of the equal protection clause of the Fourteenth Amendment is to 16 secure every person within the state's jurisdiction against intentional and arbitrary 17 discrimination, whether occasioned by express terms of a statute or by its improper 18 execution through duly constituted agents.” Village of Willowbrook v. Olech, 528 U.S. 19 562, 564 (2000) (quotation marks and citation omitted). To state a claim under section 20 1983 for a violation of the Equal Protection Clause, a plaintiff must sufficiently allege that 21 he was treated differently than others similarly situated and that the disparate treatment was 22 intentional. Bhagat v. City of Santa Ana, 58 F. App’x 332, 334 (9th Cir. 2003). 23 In the scenario at hand, Plaintiff fails to outline allegations that plausibly 24 demonstrate Defendants acted with discriminatory intent when they terminated him from 25 his position at UAHS. He also fails to allege sufficient facts from which the Court can 26 reasonably infer that he was terminated because he is gay. While Plaintiff contends he was 27 “the only homosexual male at his level of seniority in UAHS who was terminated at [the] 28 time[,]” (Doc. 1, ¶ 56), this allegation fails to suggest that Plaintiff’s heterosexual 1 comparators were treated more favorably. Rather, the allegation implies that UAHS 2 employed other homosexual males at Plaintiff’s seniority level who were not terminated at 3 the same time. 4 The Court cannot reasonably infer that Plaintiff was fired due to his sexual 5 orientation since he suggests Defendants had no issue with retaining other gay men in 6 similar positions. Although an inference may be made that there were other non- 7 discriminatory reasons for Plaintiff’s departure, simply because those reasons went 8 undisclosed does not mean that his termination was unlawful. The Court grants Plaintiff 9 leave to allege facts which would demonstrate that he was treated differently than others 10 similarly situated and that the disparate treatment was intentional. Accordingly, Plaintiff’s 11 Equal Protection claim is dismissed without prejudice. 12 III. Disparate Treatment under Title VII 13 Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an employer:

14 (1) to fail or refuse to hire or to discharge any individual, or 15 otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of 16 employment, because of such individual's race, color, religion, 17 sex, or national origin; or

18 (2) to limit, segregate, or classify his employees or applicants 19 for employment in any way which would deprive or tend to deprive any individual of employment opportunities or 20 otherwise adversely affect his status as an employee, because 21 of such individual's race, color, religion, sex, or national origin. 22 23 42 U.S.C. § 2000e–2(a). In E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 24 (2015), the Supreme Court referred to these two proscriptions as the “disparate treatment” 25 provision and the “disparate impact” provision, and reiterated that they “are the only causes 26 of action under Title VII.” Id. at 2032. 27 In Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), a decision issued in 28 June, the Supreme Court held that Title VII prohibits discrimination based on sexual 1 orientation, as “discrimination based on homosexuality . . . necessarily entails 2 discrimination based on sex[.]” Id. at 1746-47. Therefore, to state a claim for disparate 3 treatment under Title VII, a plaintiff must allege: (1) he was discharged (2) because of (3) 4 his sex (which includes sexual orientation). See Abercrombie & Fitch, 135 S. Ct. at 2032 5 (outlining similar claim for religious discrimination). 6 Defendants concede Plaintiff is a gay male who was discharged from employment 7 at the University. They argue, however, that Plaintiff fails to adequately allege that his 8 sexuality was a motivating factor in their decision to fire him. It is clear that Title VII 9 prohibits using an individual’s sexual orientation as a “motivating factor” in employment 10 decisions. See Abercrombie & Fitch, 135 S. Ct. at 2032 (quoting 42 U.S.C. § 2000e-2(m) 11 (“Title VII . . . prohibit[s] even making a protected characteristic a ‘motivating factor’ in 12 an employment decision.”)) What is not clear is that the Arizona Board of Regents used 13 Plaintiff’s sexual orientation as a motivating factor in its alleged decision to fire him. To 14 support his claim, Plaintiff contends (i) the individual Defendants knew of his sexual 15 orientation; (ii) he had a solid employment record at the University; and (iii) that he “was 16 the only homosexual male at his level of seniority in UAHS who was terminated at that 17 time.” (Doc. 1, ¶¶ 23, 42, 56) (emphasis added). 18 In Wood v. City of San Diego, 678 F.3d 1075 (9th Cir. 2012), the Ninth Circuit 19 elucidated pleading standards for claims of disparate treatment under Title VII. It observed:

20 Disparate treatment occurs where an employer has treated a 21 particular person less favorably than others because of a protected trait. A disparate-treatment plaintiff must establish 22 that the defendant had a discriminatory intent or motive for 23 taking a job-related action. A discriminatory motive may be established by the employer's informal decisionmaking or a 24 formal, facially discriminatory policy, but liability depends on 25 whether the protected trait ... actually motivated the employer's decision. It is insufficient for a plaintiff alleging discrimination 26 under the disparate treatment theory to show the employer was 27 merely aware of the adverse consequences the policy would have on a protected group. 28 1 Wood, 678 F.3d at 1081 (quotation marks and citations omitted). 2 Here, Plaintiff fails to provide sufficient allegations for the Court to draw the 3 reasonable inference that he was terminated because he is gay. He provides only 4 conclusory allegations that his sexuality was a motivating factor for his termination. Not 5 only does Plaintiff fail to sufficiently allege that his sexuality was used against him, he also 6 fails to reference any similarly situated individual or group that was treated more favorably. 7 Plaintiff’s tenuous attempt to draw out qualified comparators falls far short of the pleading 8 standards outlined in Iqbal. Plaintiff is granted leave of thirty days to amend his complaint 9 to submit other facts upon which he may state a Title VII claim. Accordingly, this cause 10 of action is dismissed without prejudice. 11 CONCLUSION 12 For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART 13 Defendants’ Motion to Dismiss. Plaintiff’s First Amendment retaliation and freedom of 14 association claims are DISMISSED WITH PREJUDICE. Plaintiff’s equal protection and 15 Title VII claims are DISMISSED WITHOUT PREJUDICE. The Court allows Plaintiff 16 thirty (30) days to file an amended complaint. 17 18 19 20 21 22 23 24 25 26 27 28 1 IT IS SO ORDERED: 2 1. Defendants’ Motion to Dismiss (Doc. 16) is GRANTED IN PART AND 3 DENIED IN PART. 4 2. Plaintiff's First Amendment retaliation claim and freedom of association claim 5 are DISMISSED WITH PREJUDICE. 6 3. Plaintiffs equal protection claim and Title VII disparate treatment claim are 7 DISMISSED WITHOUT PREJUDICE. 8 4. Plaintiff is GRANTED LEAVE of 30 days, from the date of entry of this Order, 9 to file an amended complaint. 10 11 Dated this 11th day of August, 2020. 12 1 Ei LC Decyamaens 14 Honorable Cin . J6fgenson United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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