Duke v. San Francisco Community College District

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

7 SHALAMON DUKE, Case No. 19-cv-06327-PJH 8 Plaintiff,

9 v. ORDER GRANTING IN PART AND DENYING IN PART MOTION TO 10 CITY COLLEGE OF SAN FRANCISCO, DISMISS et al., 11 Re: Dkt. No. 36 Defendants. 12

13 14 Before the court is defendants San Francisco Community College District 15 (“CCSF”) and Chancellor Mark William Rocha’s (“Rocha” and together with CCSF, 16 “defendants”) motion to dismiss. The matter is fully briefed and suitable for resolution 17 without oral argument. Having read the papers filed by the parties and carefully 18 considered their arguments and the relevant legal authority, and good cause appearing, 19 the court hereby rules as follows. 20 BACKGROUND 21 On August 26, 2019, plaintiff Dr. Shalamon Duke (“Duke” or “plaintiff”) filed a 22 complaint against defendants CCSF, Rocha, and Does 1–10 in the Superior Court of the 23 State of California, County of San Francisco, asserting fourteen causes of action. Dkt. 1, 24 Ex. A. On October 3, 2019, defendants removed this action to federal court. Dkt. 1. On 25 November 22, 2019, plaintiff filed a First Amended Complaint (“FAC,” Dkt. 19), asserting 26 the same fourteen causes of action against defendants as the state court complaint. This 27 court previously granted in part and denied in part defendants’ motion to dismiss the 1 ten causes of action: (1) negligent infliction of emotional distress (“NIED”) (alleged 2 against CCSF and Does); (2) violation of Cal. Gov. Code § 54957 (alleged against CCSF 3 and Does); (3) intentional infliction of emotional distress (“IIED”) (alleged against CCSF 4 and Does); (4) violation of Cal. Gov. Code § 12940(h) (“FEHA Discrimination”) (alleged 5 against CCSF and Does); (5) violation of 42 U.S.C. § 1983 (alleged against CCSF, 6 Rocha, and Does); (6) violation of 29 U.S.C. § 206 (“Equal Pay Act”) (alleged against 7 CCSF, Rocha, and Does); (7) violation of 29 U.S.C. §§ 621–34 (“ADEA”) (alleged against 8 CCSF and Does); (8) violation of 42 U.S.C. § 2000 et seq. (“Title VII”) (alleged against 9 CCSF and Does); (9) violation of Cal. Gov. Code § 12940(a) (“FEHA Discrimination”) 10 (alleged against CCSF and Does); and (10) violation of Cal. Gov. Code § 12940(h) 11 (“FEHA Retaliation”) (alleged against CCSF and Does). Dkt. 34. 12 Duke is an African American educator who served as Associate Vice Chancellor of 13 Student Development at CCSF beginning in June 2018. SAC ¶¶ 8–9. Plaintiff’s initial 14 salary was supposed to be $172,184.67 per year, though for reasons not detailed in the 15 SAC, CCSF started him at a lower salary. Id. ¶ 18. Plaintiff further alleges that a “Latina 16 counterpart”—hired at the same time and the same associate vice chancellor position for 17 which CCSF hired Duke—earned a starting salary of $193,152.18. Id. 18 On December 6, 2018, a state court civil complaint was filed in Los Angeles 19 county against Duke alleging that he sexually harassed an individual while working at a 20 former employer—a community college within the Los Angeles Community College 21 District. Id. ¶ 19. The next day, plaintiff alleges that he contacted his superior, Vice 22 Chancellor Trudy Walton, and informed her that litigation was pending against him in Los 23 Angeles county. Id. ¶ 23. On December 8, 2018, CCSF placed Duke on administrative 24 leave, which was communicated to him by the Vice Chancellor of Human Resources, 25 Diana Gonzales. Id. ¶¶ 23–24, Ex. 7. On December 10, 2019, Gonzales, on behalf of 26 Rocha, asked for Duke’s resignation, and told plaintiff that Rocha would move to 27 terminate him. Id. ¶ 24. As exhibits attached to the complaint detail, the impetus behind 1 of a pending complaint during his hiring process. Id., Exs. 7, 10. CCSF further stated 2 that their actions derived from the failure to disclose rather than the content of the 3 complaint, which at the time were only unproven allegations against Duke. Id., Ex. 10. 4 On December 11, 2018, CCSF sent a notice to Duke formally placing him on 5 administrative leave, and on the same day, Rocha sent an email to the CCSF community 6 stating that Duke had been “separated” from CCSF and would “not return to his duties.” 7 Id. ¶ 25. On December 12, 2018, plaintiff received a 24-hour notice of a CCSF Board of 8 Trustee’s (the “Board”) meeting via his email account, but he alleges that he did not 9 receive notice via postal mail until December 15, 2018. Id. ¶ 26. The Board meeting 10 occurred on December 13, 2018 and as a result of that meeting, CCSF decided to 11 terminate plaintiff’s employment. Id. ¶ 27. On December 14, 2018, CCSF provided 12 notice to Duke that it intended to terminate his employment because Duke lacked 13 judgment and good sense by failing to notify CCSF that a complaint was pending. Id. 14 However, plaintiff alleges no complaint was pending when Duke assumed his position at 15 CCSF. Id. 16 At plaintiff’s request, CCSF held a pre-disciplinary hearing on January 9, 2019. Id. 17 ¶ 30. Duke alleges that the hearing was deficient for various reasons not relevant to this 18 order. Id. ¶ 31. On January 23, 2019, plaintiff received a second 24-hour notice of a 19 Board meeting, again by email and not by postal mail. Id. ¶ 32. The Board met on 20 January 24th, 2019, and unanimously voted to terminate Duke’s employment. Id. On 21 January 25, 2019, Rocha sent plaintiff notice of his termination. Id. ¶ 29. 22 Prior to CCSF’s termination of Duke’s employment, plaintiff had requested leave 23 for the birth of his daughter, which had been granted. Id. ¶ 34. However, he was 24 terminated shortly before he was scheduled to take his leave. Id. On June 14, 2019, 25 Duke sent a California Government Tort Claim to CCSF, to which CCSF did not respond. 26 Id. ¶ 35. On July 2, 2019, Duke filed a complaint with the California Department of Fair 27 Employment and Housing. Id. ¶ 36. Duke subsequently received right-to-sue letters. Id. 1 DISCUSSION 2 A. Legal Standard 3 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the 4 legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 5 1199–1200 (9th Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that 6 a complaint include a “short and plain statement of the claim showing that the pleader is 7 entitled to relief,” Fed. R. Civ. P. 8(a)(2), a complaint may be dismissed under Rule 8 12(b)(6) if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient 9 facts to support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th 10 Cir. 2013). 11 While the court is to accept as true all the factual allegations in the complaint, 12 legally conclusory statements, not supported by actual factual allegations, need not be 13 accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). The complaint must proffer 14 sufficient facts to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. 15 Twombly, 550 U.S. 544, 555, 558–59 (2007). 16 “A claim has facial plausibility when the plaintiff pleads factual content that allows 17 the court to draw the reasonable inference that the defendant is liable for the misconduct 18 alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court 19 to infer more than the mere possibility of misconduct, the complaint has alleged—but it 20 has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. 21 P. 8(a)(2)). If dismissal is warranted, it is generally without prejudice, “unless it is 22 clear . . . that the complaint could not be saved by any amendment.” In re Daou Sys., 23 Inc., 411 F.3d 1006, 1013 (9th Cir. 2005). “Leave to amend may also be denied for 24 repeated failure to cure deficiencies by previous amendment.” Abagninin v. AMVAC 25 Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008). 26 Review is generally limited to the contents of the complaint, although the court can 27 also consider documents “whose contents are alleged in a complaint and whose 1 pleading.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (quoting In re Silicon 2 Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999)). The court may also 3 consider matters that are properly the subject of judicial notice (Lee v. City of Los 4 Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001)), exhibits attached to the complaint (Hal 5 Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 6 1989)), and documents referenced extensively in the complaint and documents that form 7 the basis of the plaintiff’s claims (No. 84 Emp’r-Teamster Jt. Counsel Pension Tr. Fund v. 8 Am. W. Holding Corp., 320 F.3d 920, 925 n.2 (9th Cir. 2003)). 9 B. Analysis 10 1. Request for Judicial Notice 11 Federal Rule of Evidence 201 permits a court to notice a fact if it is “not subject to 12 reasonable dispute.” Fed. R. Evid. 201(b). A fact is “not subject to reasonable dispute” if 13 it is “generally known,” or “can be accurately and readily determined from sources whose 14 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)–(2). 15 Defendants request the court judicially notice public records in the form of a 16 complaint against plaintiff filed in California state court as well as documents from 17 CCSF’s website including a board agenda, board minutes, and CCSF’s organizational 18 chart. Dkt. 36-1. Plaintiff does not oppose this request. 19 The court may judicially notice court documents already in the public record and 20 filed in other courts. Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002). Thus, the state 21 court complaint is noticeable. Generally, a court may consider factual information from 22 the internet as long as the facts are not subject to reasonable dispute. See, e.g., Perkins 23 v. LinkedIn Corp., 53 F. Supp. 3d 1190, 1204 (N.D. Cal. 2014). However, it is not 24 appropriate to notice the truth asserted within the websites especially when that 25 information is solely within CCSF’s control. See United States ex rel. Hong v. Newport 26 Sensors, Inc., 728 Fed. App’x 660, 661 (9th Cir. 2018) (finding no abuse of discretion 27 where district court judicially noticed websites “‘not for the truth of the information’ 1 Accordingly, the court GRANTS defendants’ request to notice public records and the 2 availability of information on CCSF’s website but not the truth of the information 3 contained within the websites themselves. 4 2. Whether Plaintiff’s SAC Adequately Pleads Each Claim 5 Defendants only move to dismiss plaintiff’s second, and fifth through tenth causes 6 of action. The court discusses each contested claim in turn. 7 a. Second Claim: Violation of Government Code § 54957 8 Plaintiff’s second claim alleges that CCSF violated Government Code § 54957 by 9 failing to provide him with timely notice of the December 13, 2018 and January 24, 2019 10 CCSF Board of Trustee’s meetings by postal mail or personal service. This court’s 11 previous order denied defendants’ motion to dismiss this claim but invited the parties to 12 provide additional briefing in subsequent motions. Dkt. 32 at 24. Defendants argue that 13 the notice requirements of Government Code § 54957 do not apply to meetings where 14 the Board is considering the discipline or dismissal of an employee and that the January 15 2019 meeting resulted in plaintiff’s dismissal. Mtn. at 7. Plaintiff contends that the two 16 notices he received from defendants stated that the Board of Trustees would discuss in 17 closed session the information in the “charges” brought against plaintiff. Opp. at 8. 18 Because the notice explicitly referenced charges, plaintiff posits that he was owed proper 19 notice of those charges brought against him and the notice was improper because the 20 notice did not arrive by postal mail until after the Board held its meetings. Id. at 8–10. 21 Generally, California’s Brown Act requires local legislative bodies, including the 22 board of a community college district, to open their meetings to the public. Fischer v. L.A. 23 Unified Sch. Dist., 70 Cal. App. 4th 87, 95 (Ct. App. 1999); see also Cal. Gov. Code 24 §§ 54951–52. California Government Code § 54957 creates a “personnel exception” to 25 the open meeting requirement and provides:

26 (1) Subject to paragraph (2), this chapter shall not be construed to prevent the legislative body of a local agency from holding 27 closed sessions during a regular or special meeting to consider complaints or charges brought against the employee by 1 another person or employee unless the employee requests a public session. 2 (2) As a condition to holding a closed session on specific 3 complaints or charges brought against an employee by another person or employee, the employee shall be given written notice 4 of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall 5 be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not 6 given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or 7 charges in the closed session shall be null and void. 8 Cal. Gov. Code § 54957(b). In Fischer, 70 Cal. App. 4th at 96, the California Court of 9 Appeal interpreted the final phrase of the first paragraph—“unless the employee requests 10 a public session”—as only modifying the phrase immediately before it, i.e., “or to hear 11 complaints or charges brought against the employee by another person or employee.” 12 The same phrase does not modify the phrase “to consider the appointment, employment, 13 evaluation of performance, discipline, or dismissal of a public employee.” Id. Thus, the 14 court held that “section 54957 requires 24-hour written notice only when the Board hears 15 specific complaints and charges, and not when it considers the appointment, 16 employment, evaluation of performance, discipline, or dismissal of a public employee.” 17 Id. at 100 (emphasis added). 18 Neither party disputes Fischer’s interpretation of the personnel exception to the 19 Brown Act. Instead, they dispute whether the CCSF Board of Trustee’s meetings were 20 intended to either hear complaints or charges against Duke or to consider the discipline 21 or dismissal against Duke. Plaintiff, favoring the former application, contends that 22 Exhibits 9 and 16 of the SAC (corresponding to the notices he received for the December 23 2018 and January 2019 Board meetings) specifically reference “charges” and do not 24 state the purpose of the meetings were for his discipline or dismissal. Opp. at 9. 25 Defendants, favoring the latter application, argue that the January 24, 2019 board 26 meeting was only a closed session vote on plaintiff’s dismissal as associate vice 27 chancellor. Because the Board did not receive testimony or evidence from witnesses or 1 meeting to consider a complaint or charge. Mtn. at 8. 2 Prior California Court of Appeal decisions are helpful in fleshing out the contours of 3 what constitutes a complaint or charge. In Bell v. Vista Unified School District, the Court 4 of Appeal, relying on prior case law and a California Attorney General opinion, defined 5 “[b]oth ‘complaint’ and ‘charges [as] connot[ing] an accusation, something which is 6 ‘brought against’ an individual.” 82 Cal. App. 4th 672, 683 (Ct. App. 2000) (first alteration 7 in original) (quoting 78 Ops. Cal. Atty. Gen. 218, 223 (1995)). In Bell, a school board met 8 to hear a report made by a separate administrative body concerning an employee. Id. at 9 681. The court held that presentment of the separate administrative body’s findings to 10 the school board constituted an accusation (essentially, an indictment) requiring notice 11 under the Brown Act. Id. at 683. 12 A more recent opinion, Ricasa v. Office of Administrative Hearings, 31 Cal. App. 13 5th 262, 276 (Ct. App. 2018), held that section 54957’s “complaints or charges” provision 14 is only triggered when a board conducts a hearing in which witnesses are heard and 15 evidence presented. Ricasa distinguished Bell because the board in Bell essentially 16 heard evidence from a prior administrative hearing and, therefore, met to conduct an 17 evidentiary hearing. Id. at 279. In contrast to Bell, the board in Ricasa met to initiate the 18 process of demoting a counselor from an administrative position on the basis of a guilty 19 plea that the counselor had already entered into. Id. at 277. “The Board did not resolve 20 a factual dispute that required a response from [the counselor], but instead debated 21 whether the undisputed facts warranted discipline.” Id. at 279. The Ricasa court held 22 that this meeting did not violate the Brown Act because the “Board did not receive 23 evidence or testimony from any percipient witness, nor did it hear from a third party about 24 any claims against [the counselor].” Id. at 277. 25 Here, there are two Board meetings for which plaintiff alleges he received deficient 26 notice. First, the SAC alleges that the Board held a hearing on December 13, 2018 and 27 following the meeting, Vice Chancellor Gonzales informed plaintiff that the Board 1 required of a senior administrator with [CCSF].” SAC ¶ 27. Defendants do not discuss 2 this meeting in their motion. Plaintiff has alleged sufficient facts to state a claim for 3 violation of Government Code section 54957. The December 13, 2018 meeting was the 4 first opportunity where the Board met to hear facts concerning Duke’s complaint and 5 situation. Defendants did not dismiss him as a result of that meeting but instead informed 6 him that they intended to do so. This indicates that the Board weighed and considered 7 some facts presented to it and did not previously have those facts. It is plausible that the 8 Board received evidence permitting it to determine that Duke’s employment should be 9 terminated. If the Board received evidence then, under either Ricasa or Bell, the Board 10 plausibly could have considered a complaint or charge against plaintiff requiring written 11 notice, which he alleges was not timely received. 12 Second, the SAC also alleges a Board meeting occurred on January 24, 2019 13 where “the Board of Trustees unanimously voted to terminate Dr. Duke’s employment.” 14 SAC ¶ 32. The decision to terminate an employee is clearly a dismissal decision, which 15 the Board need not have provided notice to plaintiff. This was neither an evidentiary 16 hearing, as defined by Ricasa, nor an accusation, as defined by Bell. As demonstrated in 17 the SAC, plaintiff had the opportunity prior to the January 24th Board meeting to present 18 evidence in his defense and for the Board to hear evidence and witnesses concerning 19 complaints or charges brought against plaintiff. Thus, plaintiff has not stated a plausible 20 claim for violation of Government Code section 54957 for the January 24, 2019 Board 21 meeting. 22 Finally, the court notes that defendants have not addressed whether electronic 23 mail constitutes sufficient notice for purposes of section 54957, despite the court’s 24 invitation to do so in its prior order. It may be the case that plaintiff received sufficient 25 notice to meet the requirements of section 54957, but for the purposes of a motion to 26 dismiss, it is not clear that plaintiff fails to state a claim. He alleges that notice via postal 27 mail arrived after the Board held its meeting. Thus, plaintiff has stated a plausible claim 1 January 24, 2019 Board meeting. 2 For the foregoing reasons, defendants’ motion to dismiss plaintiff’s second cause 3 of action is GRANTED IN PART and DENIED IN PART. Because plaintiff has had the 4 opportunity to allege sufficient facts concerning the January 24, 2019 meeting and has 5 not cured the issues identified by the court’s prior order, further amendment would be 6 futile. Thus, to the extent plaintiff alleges a violation of Government Code § 54957 7 concerning the January 24, 2019 Board meeting, that claim is DISMISSED WITH 8 PREJUDICE. 9 b. Fifth Claim: § 1983 10 Plaintiff’s fifth claim is for violation of 42 U.S.C. § 1983, advancing a theory that 11 defendants have violated his right to equal protection of the laws as guaranteed by the 12 Fourteenth Amendment. In relevant part, section 1983 provides that:

13 Every person who, under color of any statute . . . of any State or Territory or the District of Columbia, subjects . . . any citizen 14 of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 15 secured by the Constitution and laws, shall be liable to the party injured . . . . 16 17 42 U.S.C. § 1983. 18 As an initial matter, plaintiff brings his section 1983 claim against both CCSF and 19 Rocha. SAC ¶ 65. The Supreme Court has held that “a State is not a person within the 20 meaning of § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 62 (1989). This 21 holding extends to “governmental entities that are considered ‘arms of the State’ for 22 Eleventh Amendment purposes.”1 Id. at 70. California community colleges are arms of 23 the state for Eleventh Amendment purposes and therefore CCSF is not a person as 24 defined by section 1983. See Cerrato v. S.F. Comm. Coll. Dist., 26 F.3d 968, 972 (9th 25 1 Though it references “arms of the State” for Eleventh Amendment purposes, Will’s 26 holding does not rely on or derive from the Eleventh Amendment’s grant of state sovereign immunity. See 491 U.S. at 63–64. Thus, even though CCSF waived its 27 Eleventh Amendment immunity by voluntarily removing this case to federal court 1 Cir. 1994) (citing Mitchell v. L.A. Comm. Coll. Dist., 861 F.2d 198, 201–02 (9th Cir. 2 1988)). 3 The same rule generally applies, with some exception, to suits against state 4 officials sued in their official capacities, because “a suit against a state official in his or 5 her official capacity is not a suit against the official but rather is a suit against the official’s 6 office.” Will, 491 U.S. at 71. Discussing one such exception to the general rule, the Will 7 court noted that a state official is a “person” if he is sued for injunctive relief in his official 8 capacity. Id. at 71 n.10 (citing, e.g., Ex parte Young, 209 U.S. 123, 159–60) (1908)). 9 Before applying the general rule and the exception, two facts are notable here: first, 10 plaintiff has not specified whether he is suing Rocha in his official or personal capacity 11 and second, plaintiff only seeks monetary damages for his section 1983 claim. SAC, 12 Prayer for Relief. To the extent plaintiff brings his claim against Rocha in his official 13 capacity for monetary damages, Will makes clear that such an action cannot be 14 maintained. To the extent plaintiff seeks to bring a claim against Rocha in his personal 15 capacity for monetary damages, such a claim is permissible, but only by showing that the 16 official personally caused the deprivation of plaintiff’s federal right. Hafer v. Melo, 502 17 U.S. 21, 25 (1991) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)). Therefore, 18 the court proceeds to the merits of plaintiff’s claim but only as alleged against Rocha in 19 his personal capacity. 20 “To state a claim under section 1983 for a violation of the Equal Protection Clause, 21 a plaintiff ‘must show that the defendants acted with an intent or purpose to discriminate 22 against the plaintiff based upon membership in a protected class,’ and that plaintiff was 23 treated differently from persons similarly situated. Lam v. City & Cty. of San Francisco, 24 868 F. Supp. 2d 928, 951 (N.D. Cal. 2012) (quoting Barren v. Harrington, 152 F.3d 1193, 25 1194 (9th Cir. 1998); and citing Lee, 250 F.3d 668; and Washington v. Davis, 426 U.S. 26 229, 239–40 (1976)). Thus, Duke must demonstrate “(1) that the plaintiff was treated 27 differently from others similarly situated; (2) this unequal treatment was based on an 1 applying this classification; and (4) the plaintiff suffered injury as a result of the 2 discriminatory classification.” Id. (citing Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 3 279 (1979)). 4 Here, plaintiff alleges that Rocha deprived him of his right to equal protection of 5 the laws because Rocha treated him differently than other non-African American male 6 employees. SAC ¶ 70. Specifically, Duke alleges that Rocha improperly terminated him 7 because the allegations of misconduct occurred in Los Angeles Community College 8 District over which CCSF has no jurisdiction and because Rocha and CCSF terminated 9 him based on two grounds that are not stated in California Education Code 10 section 87732. Opp. at 15. Plaintiff is African American, which is the only protected 11 class he cites with respect to his equal protection claim. SAC ¶ 68. While the court takes 12 all his allegations as true, there are no allegations that the unequal treatment he suffered 13 was based on Rocha personally classifying him as an African American. Nor are there 14 any allegations that Rocha personally acted with discriminatory intent based on the 15 impermissible classification, i.e., that Duke was African American. Thus, plaintiff fails to 16 allege the second and third elements of an equal protection claim. 17 For the foregoing reasons, defendants’ motion to dismiss plaintiff’s fifth claim is 18 GRANTED. Plaintiff’s claim alleged against CCSF and Rocha in his official capacity are 19 DISMISSED WITH PREJUDICE as neither is a “person” under section 1983. Because 20 the court has previously dismissed plaintiff’s section 1983 claim and has not cured his 21 deficiencies, further amendment would be futile. Thus, plaintiff’s claim alleged against 22 Rocha in his personal capacity is also DISMISSED WITH PREJUDICE. 23 c. Sixth Claim: Equal Pay Act 24 Duke alleges that defendants violated the Equal Pay Act because CCSF paid an 25 employee (a “Latina counterpart”)—holding a position with similar responsibilities 26 performing a “comparable in scope of work” as Duke—more than plaintiff, despite his 27 having “more direct experience.” See SAC ¶¶ 79–81. 1 employer is paying different wages to employees of the opposite sex for equal work. The 2 jobs held by employees of opposite sexes need not be identical, but they must be 3 ‘substantially equal.’” Hein v. Or. Coll. of Educ., 718 F.2d 910, 913 (9th Cir. 1983) 4 (quoting Gunther v. Cty. of Washington, 623 F.2d 1303, 1309 (9th Cir. 1979), aff’d on 5 other grounds, 452 U.S. 161 (1981)). “[T]he proper test for establishing a prima facie 6 case in a professional setting such as that of a college is whether the plaintiff is receiving 7 lower wages than the average of wages paid to all employees of the opposite sex 8 performing substantially equal work and similarly situated with respect to any other 9 factors, such as seniority, that affect the wage scale.” Id. at 916. When there is only a 10 single opposite-gender employee with similar work, it is appropriate to compare the 11 plaintiff’s pay against that of a single employee. Id. at 918 (noting, however, that the 12 Ninth Circuit looks “critically upon the use of a single comparator to make out a prima 13 facie case”). “The prima facie case is limited to a comparison of the jobs in question, and 14 does not involve a comparison of the individuals who hold the jobs.” Stanley v. Univ. of 15 S. Cal., 178 F.3d 1069, 1074 (9th Cir. 1999) (citations omitted). Further, “it is actual job 16 performance requirements, rather than job classifications or titles, that is determinative.” 17 E.E.O.C. v. Maricopa Cty. Cmty. Coll. Dist., 736 F.2d 510, 513 (9th Cir. 1984) (citing 18 Gunther, 623 F.2d at 1309). 19 Plaintiff has not alleged that he is receiving lower wages than the average of 20 wages paid to all employees of the opposite sex performing substantially equal work and 21 otherwise similarly situated as plaintiff. Instead, he seeks to demonstrate that the 22 appropriate comparison is with a single opposite-gender employee with similar work—in 23 this case his Latina counterpart. The court previously dismissed plaintiff’s Equal Pay Act 24 claim because he had not properly alleged this theory. In the SAC, plaintiff alleges that 25 the comparator individual in question “was the only other person who, at all relevant 26 times, held the position of Associate Vice Chancellor of Student Affairs, making her the 27 only individual with whom he could compare himself to for purposes of this civil action.” 1 court to judicially notice, demonstrates that CCSF employs numerous associate vice 2 chancellors against which Duke’s salary could be compared. Mtn. at 12. 3 The question here is whether plaintiff has alleged sufficient factual allegations to 4 demonstrate that the comparator individual was the only individual with comparable job 5 performance requirements as plaintiff and that he was paid less than her. Defendants’ 6 organizational chart is not persuasive for two reasons. First, the proper inquiry to 7 determine whether the jobs compared are substantially equal is into job performance 8 requirements and not job titles, which is all the chart describes. Second, the truth 9 asserted in the organizational chart is not judicially noticeable.2 10 Plaintiff has alleged sufficient facts to state a claim for violation of the Equal Pay 11 Act. Duke alleges that his Latina counterpart was hired for the same position as he was. 12 SAC ¶ 18. He also alleges that his counterpart was the only other associate vice 13 chancellor of student affairs making her the only individual against which plaintiff could 14 compare himself. Id. ¶ 78. It is reasonable to conclude that two associate vice 15 chancellors overseeing the same area of responsibility (i.e., student affairs) would have 16 the same job responsibilities. It may be the case that, at a later stage, other associate 17 vice chancellors may also have similar job responsibilities making plaintiff’s single 18 comparator inappropriate. However, for purposes of a motion to dismiss, plaintiff has 19 alleged sufficient facts to demonstrate the two jobs were substantially equal. Plaintiff has 20 also alleged that he was paid less than his counterpart, which is supported by an email 21 from Vice Chancellor Walton acknowledging the pay differential. Id. ¶ 18 & Ex. 3. 22 Therefore, plaintiff has stated a claim for violation of the Equal Pay Act. 23 For the foregoing reasons, defendants’ motion to dismiss plaintiff’s sixth claim is 24 2 Even if the court were to consider the organizational chart, it is not clear that the chart 25 supports the point defendants assert. The chart purports to demonstrate that there are two Associate Vice Chancellor of Student Affairs—one vacant, i.e., Duke’s former 26 position, and one filled by the individual Duke seeks as his single comparator. Dkt. 36-1, Ex. 4. If anything, this suggests there are no other associate vice chancellors of student 27 affairs that plaintiff should have but did not include. If the other associate vice chancellor 1 DENIED. 2 d. Seventh Claim: ADEA 3 The Age Discrimination in Employment Act (“ADEA”) provides:

4 It shall be unlawful for an employer--

5 (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his 6 compensation, terms, conditions, or privileges of employment, because of such individual’s age; 7 (2) to limit, segregate, or classify his employees in any way 8 which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his 9 status as an employee, because of such individual's age; or

10 (3) to reduce the wage rate of any employee in order to comply with this chapter. 11 12 29 U.S.C. § 623. “To establish a prima facie case of discrimination, a plaintiff must allege 13 in [his] complaint that: (1) [he] was at least forty years old; (2) [he] was performing [his] 14 job satisfactorily; (3) discharged; and (4) ‘either replaced by [a] substantially younger 15 [employee] with equal or inferior qualifications or discharged under circumstances 16 otherwise giving rise to an inference of age discrimination.’” Sheppard v. David Evans & 17 Assoc., 694 F.3d 1045, 1049 (9th Cir. 2012) (third and fourth alterations in original) 18 (quoting Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008)). 19 With regard to the fourth element regarding a substantially younger employee, the 20 Ninth Circuit has adopted a rebuttable presumption regarding the age of a replacement 21 employee.

22 [A]n age difference of less than ten years, without more evidence, is insufficient to make a prima facie case of age 23 discrimination. . . . [A]n age difference of less than ten years creates a rebuttable presumption that the age difference is 24 insubstantial. . . . A plaintiff who is not ten years or more older than his or her replacements can rebut the presumption by 25 producing additional evidence to show that the employer considered his or her age to be significant. The plaintiff can 26 produce either direct or circumstantial evidence to show that the employer considered age to be a significant factor. 27 1 Defendants argue that plaintiff cannot make out a prima facie claim because he 2 was not performing his job satisfactorily. They also argue that Duke was ostensibly the 3 same age when he was hired as he was when CCSF fired him, which undermines his 4 claim of age discrimination. Mtn. at 13. Defendants also argue that plaintiff cannot claim 5 an individual with equal or inferior qualifications and an age differential in excess of ten 6 years replaced him because CCSF’s organizational chart reflects that Duke’s position 7 remains vacant. Id. Plaintiff contends that he has alleged that the person now carrying 8 out his duties is an interim dean and son of the Vice Chancellor of Human Resources. 9 Opp. at 14. 10 In the prior order, the court dismissed plaintiff’s ADEA claim because the 11 allegations concerning his replacement’s age were conclusory and plaintiff alleged no 12 other facts demonstrating that defendants considered plaintiff’s age to be significant. Dkt. 13 32 at 15. Despite the court’s prior finding, plaintiff has not alleged any new factual 14 allegations to cure this deficiency. He continues to allege that he “is informed, believes 15 and thereon alleges that the individual who has assumed his duties is at least 10 years 16 younger than him” and that “his duties have been assumed by the son of then Senior 17 Vice Chancellor of Human Resources.” SAC ¶ 93. Because plaintiff has not identified 18 any factual allegations concerning his replacement’s age, plaintiff has not established a 19 rebuttable presumption that defendants acted because of his age. Nor does the SAC 20 contain any additional allegations demonstrating that defendants thought Duke’s age to 21 be a significant factor. 22 For the foregoing reasons, defendants’ motion to dismiss plaintiff’s seventh claim 23 is GRANTED. Because plaintiff has failed to allege new factual allegations to support 24 this claim, further amendment would be futile. Accordingly, plaintiff’s seventh claim is 25 DISMISSED WITH PREJUDICE. 26 e. Eighth and Ninth Claims: Discrimination 27 Plaintiff’s eighth claim for violation of Title VII alleges that defendants discriminated 1 authority to investigate claims and allegations in a different community college district. 2 SAC ¶ 102. According to plaintiff, this demonstrates CCSF’s action was motivated by 3 plaintiff’s race and color because CCSF has never terminated an associate vice 4 chancellor for allegations that CCSF neither investigated nor were in its jurisdiction. Id. 5 ¶ 103. Plaintiff’s ninth claim for violation of California’s discrimination law alleges that 6 defendants discriminated against him based on his race for requesting leave for the birth 7 of his daughter and for terminating him based on allegations pending in a civil lawsuit 8 filed in Los Angeles county. Id. ¶ 111. 9 Title VII makes it unlawful for an employer to “discriminate against any individual 10 with respect to his compensation, terms, conditions, or privileges of employment, 11 because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. 12 § 2000e–2. California Government Code section 12940(a) prohibits employers from 13 discharging a person from employment on the basis of that person’s race, sex, or age 14 (among other protected categories). Where, as here, a plaintiff does not offer direct 15 evidence of discrimination, courts use the McDonnell Douglas framework to prove 16 discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). California 17 has adopted the McDonnell Douglas framework for discrimination claims brought under 18 FEHA. Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 355 (2000); see also Metoyer v. 19 Chassman, 504 F.3d 919, 941 (9th Cir. 2007) (“California courts apply the Title VII 20 framework to claims brought under FEHA.”), abrogated on other grounds by Nat’l Ass’n 21 of African Am.-Owned Media v. Charter Commc’ns, Inc., 915 F.3d 617 (9th Cir. 2019); 22 Adetuyi v. City & Cty. of San Francisco, 63 F. Supp. 3d 1073, 1092 (N.D. Cal. 2014) 23 (collecting cases). 24 Under the McDonnell-Douglas framework, a plaintiff must establish four prima 25 facie elements: “(1) he is a member of a protected class; (2) he was qualified for his 26 position; (3) he experienced an adverse employment action; and (4) similarly situated 27 individuals outside his protected class were treated more favorably, or other 1 discrimination.” Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2 2004) (quoting Peterson v. Hewlett–Packard Co., 358 F.3d 599, 604 (9th Cir. 2004)). It is 3 important to note, however, that the McDonnell Douglas framework is an evidentiary 4 framework and not a pleading standard. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 5 (2002). Thus, while the McDonnell Douglas prima facie case is a useful touchstone in 6 evaluating whether plaintiff has a plausible claim, he is “not required to plead a prima 7 facie case of discrimination in order to survive a motion to dismiss.” Sheppard, 694 F.3d 8 at 1050 n.2 (citing Swierkiewicz, 534 U.S. at 508–11). 9 Defendants argue that plaintiff’s claims are entirely bereft of allegations linking 10 Duke’s termination of his employment to his race or color. Mtn. at 14. The court 11 previously found that plaintiff’s discrimination claims did not establish plausible, well-pled 12 allegations that defendants acted because of plaintiff’s sex, gender, color, or race. Dkt. 13 32 at 16. Moreover, plaintiff’s allegations were conclusory “in light of the fact that the 14 parties agree on certain core facts surrounding defendants’ articulated justification for 15 terminating plaintiff—that he failed to disclose an investigation of misconduct with 16 students undertaken by his previous employer prior to December 7, 2018.” Id. 17 Plaintiff has added some new factual matter to his discrimination claims. Duke 18 continues to allege that defendants’ articulated justification for terminating him is that he 19 failed to disclose an investigation of misconduct against him at his former Los Angeles 20 community college district employer. SAC ¶ 27 & Ex. 10. Plaintiff also alleges that, 21 despite the articulated justification, defendants actually terminated him because of the 22 content of the allegations pending against him. Id. ¶ 102. The new allegation is that 23 other senior administration officials at CCSF have been the subject of accusations by 24 students, but those individuals were not removed from their positions. Id. Plaintiff invites 25 the court to find that CCSF was motivated by race because CCSF has never terminated 26 an associate vice chancellor despite past student accusations. Id. ¶¶ 103, 111. 27 The new allegations do not cure the deficiencies the court identified in its prior 1 on the part of his employer. His new allegations concerning accusations by students 2 against other senior administration officials are conclusory and cannot be credited. For 3 example, there is no detail on who these other officials are and whether those officials 4 belonged to a different racial group than plaintiff. Without such details, the court cannot 5 draw a comparison between plaintiff’s race and the other administration officials who 6 were purportedly treated differently. Second, there is no causal connection between any 7 purported discriminatory animus and the firing decision. For example, accepting 8 plaintiff’s allegation that CCSF terminated Duke because of the contents of the complaint 9 pending against him in Los Angeles county, there is no connection between that 10 complaint and plaintiff’s race. Put differently, the logical inference from plaintiff’s 11 allegation is that defendants terminated his employment because of the complaint filed 12 against him (and what that complaint said) and not his membership in a protected class. 13 Thus, even though he need not meet all four elements of a prima facie case, plaintiff fails 14 to plead any circumstances that give rise to an inference of discrimination. 15 For the foregoing reasons, defendants’ motion to dismiss plaintiff’s eighth and 16 ninth claims for discrimination is GRANTED. Because plaintiff has not alleged any new 17 factual allegations that state a claim after being afforded the opportunity to do so, further 18 amendment would be futile. Accordingly, plaintiff’s eighth and ninth claim for 19 discrimination are DISMISSED WITH PREJUDICE. 20 f. Tenth Claim: Violation of Government Code § 12940(h) 21 Plaintiff’s tenth claim alleges that he engaged in a protected activity under 22 Government Code § 12940(h) and defendants retaliated against him for doing so. SAC 23 ¶¶ 118–21. The court previously dismissed plaintiff’s section 12940(h) claim because he 24 failed to adequately plead the first and fourth elements required to establish a prima facie 25 case of retaliation under the FEHA—that plaintiff show he or she engaged in a ‘protected 26 activity,’ and that plaintiff show a causal link between the protected activity and the 27 employer’s action. Dkt. 32 at 19. The allegations supporting the tenth claim in the SAC 1 the court’s prior reasoning applies here in equal measure. 2 For the foregoing reasons, defendants’ motion to dismiss plaintiff’s tenth claim is 3 GRANTED. Plaintiff has not alleged any new factual allegations after being afforded the 4 opportunity to do so and further amendment would therefore be futile. Accordingly, 5 plaintiff’s tenth claim is DISMISSED WITH PREJUDICE. 6 CONCLUSION 7 For the foregoing reasons, defendants’ motion to dismiss plaintiff’s second cause 8 of action under Government Code § 54957 is GRANTED IN PART AND DENIED IN 9 PART in accordance with this order and plaintiff’s claim concerning the January 2019 10 Board of Trustee meeting is DISMISSED WITH PREJUDICE; defendants’ motion to 11 dismiss plaintiff’s fifth cause of action for violation of 42 U.S.C. § 1983 is GRANTED and 12 plaintiff’s claim alleged against both defendants is DISMISSED WITH PREJUDICE; 13 defendants’ motion to dismiss plaintiff’s sixth cause of action for violation of the Equal 14 Pay Act is DENIED; defendant’s motion to dismiss plaintiff’s seventh cause of action 15 under the Age Discrimination in Employment Act is GRANTED and plaintiff’s claim is 16 DISMISSED WITH PREJUDICE; defendants’ motion to dismiss plaintiff’s eighth and ninth 17 causes of action under Title VII and FEHA is GRANTED and plaintiff’s claims are 18 DISMISSED WITH PREJUDICE; and defendants’ motion to dismiss plaintiff’s tenth cause 19 of action for violation of Government Code § 12940(h) is GRANTED and plaintiff’s claim 20 is DISMISSED WITH PREJUDICE. 21 IT IS SO ORDERED. 22 Dated: April 10, 2020 23 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 24 United States District Judge 25 26 27