Ellen Gordon-Ross v. Nuview Union School District

432 F. App'x 684

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 10, 2011
• Docket: 09-56680
• Status: Unpublished

Opinion

MEMORANDUM **

Plaintiff Ellen Gordon-Ross brought this action against her employer, Nuview Union School District (NUSD). 1 Gordon-Ross appeals the district court’s dismissal of the two claims in her First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). We affirm.

Gordon-Ross’s first claim alleged NUSD violated her federal civil rights under 42 U.S.C. § 1983. After reviewing Gordon-Ross’s original complaint, the district court correctly noted that her § 1983 claim was actually a Title VII claim for age and gender employment discrimination. Cf. Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1057 (9th Cir.2009); Candelore v. Clark Cnty. Sanitation Dist., 975 F.2d 588, 590 (9th Cir.1992). Because Gordon-Ross had not pled that she met Title VIPs exhaustion requirements, see, e.g., Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1104-05 (9th Cir.2008), the district court dismissed the original complaint with leave to amend. The court’s order included a detailed legal analysis explaining how Gordon-Ross could amend her complaint to properly state a valid claim.

Eschewing the district court’s guidance, Gordon-Ross’s amended complaint contained no significant revisions. Her amended complaint still did not allege any non-employment-based § 1983 claims— which would not require Title VII exhaustion — nor did it allege that she had exhausted Title VII remedies. Further, Gordon-Ross never argued before the district court that she could possibly include the necessary allegations if further leave to amend was granted. Accordingly, the district court appropriately dismissed Gordon-Ross’s § 1983 claim with prejudice.

Gordon-Ross’s second claim sought a writ of mandamus under California Code of Civil Procedure section 1085. Gordon-Ross argued NUSD violated her statutory rights to re-employment under California Education Code section 44956 by laying her off and then re-hiring her to a lesser teaching position. Gordon-Ross sought a writ compelling the school district to rehire her to her original position (kindergarten teacher).

The district court correctly dismissed Gordon-Ross’s second claim for two reasons. First, the claim is time-barred because Gordon-Ross did not challenge NUSD’s decision to lay her off within thirty days. See Cal. Gov’t Code § 11523. Gordon-Ross cites no case that would allow her petition to be filed outside this time window. Although she argues the time limit does not apply because she also brought the § 1983 claim, that argument lacks merit.

Second, the district court properly dismissed Gordon-Ross’s second claim be cause mandamus can be invoked only to compel a purely ministerial duty — i.e., an act the government entity is required by law to perform. Ridgecrest Charter Sch. v. Sierra Sands Unified Sch. Dist., 130 Cal.App.4th 986, 1002, 30 Cal.Rptr.3d 648 (2005). Mandamus cannot compel a government entity to exercise its discretion. Id. Although NUSD was statutorily required to re-hire teachers in order of seniority, see Cal. Educ.Code § 44956, the specific positions into which they are rehired is up to NUSD. Thus, Gordon-Ross cannot seek a writ of mandamus compelling NUSD to re-hire her as a kindergarten teacher.

Each party shall bear its own costs.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . The parties are familiar with the facts, and we repeat them only as necessary to explain our disposition.