1 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8
Sabina Rajasundaram, et al., ) No. CV-20-01544-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Maricopa County Community College ) 12 District, et al., ) 13 ) ) 14 Defendants. )
15 Before the Court is Defendants’ Partial Motion to Dismiss Plaintiffs’ First Amended 16 Complaint (Doc. 13) filed pursuant to Fed. R. Civ. P. (“Rule”) 12(b)(6). The Motion has 17 been fully briefed and is ripe for review. (Docs. 17, 20) For the following reasons, the 18 Motion will be granted.1 19 I. BACKGROUND 20 This case arises from alleged employment discrimination. Plaintiff Sabina 21 Rajasundaram is a former employee of Defendant Maricopa County Community College 22 District (hereinafter “MCCCD”). (Doc. 12 at ¶¶11–16) She is of Asian Indian descent and 23 Indian nationality. (Doc. 12 at ¶9) Plaintiff was hired on or about September 2017 as 24 adjunct faculty to teach Java computer programming courses. (Doc. 12 at ¶¶11,13) In 2019, 25 Plaintiff obtained a resident faculty position at two of MCCCD’s schools and a CIS 26
27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motion is suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. R. Civ. P. 28 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 Program Director position at one of them, GateWay Community College (“GWCC”). 2 (Doc. 12 at ¶¶11–16) In August of 2019, Defendant Craig Santicola, Chair of MCCCD’s 3 Business and Information Technologies Division, told Plaintiff she could not start as a 4 Program Director until the Spring 2020 semester because, as first-year faculty, she was 5 required to focus on teaching. (Doc. 12 at ¶¶20–21) Santicola placed Brian Rice, a white 6 male, in the position instead. (Doc. 12 at ¶23) Plaintiff alleges she complained of 7 discrimination and was demoted from her choice of courses, then her contract was not 8 renewed in retaliation. (Doc. 12 at ¶¶14, 32–42, 52) 9 On August 4, 2020, Plaintiff filed a Complaint in this Court against MCCCD; the 10 President of GWCC, Maria Wise; and Santicola. (Doc. 1) On October 20, 2020, Plaintiff 11 filed an amended complaint. (Doc. 12) The First Amended Complaint alleges nine causes 12 of action: (1) Fourteenth Amendment equal protection violations against MCCCD and 13 Wise, (2) denial of a property right without due process against MCCCD and Wise, (3) 14 violation of liberty interest under the Fourteenth Amendment against MCCCD and Wise, 15 (4) equal rights violation under 42 U.S.C. § 1981 against all Defendants, (5) FMLA 16 violations against MCCCD, (6) defamation and libel per se against Wise and Santicola, (7) 17 intentional infliction of emotional distress against all Defendants, (8) breach of 18 employment contract and wrongful termination under A.R.S. § 23-1501 against MCCCD, 19 and (9) breach of implied covenant of good faith and fair dealing against MCCCD. (Doc. 20 12 at 13-24) Plaintiff seeks a declaratory judgment finding her statutory and constitutional 21 rights were violated, and actual, compensatory, and punitive damages. (Doc. 12 at 23–24) 22 On November 20, 2020, Defendants filed the instant Motion to Dismiss (Doc. 13) 23 Defendants move to dismiss counts one, two, three, four, six, eight, and nine for failing to 24 state a claim upon which relief can be granted pursuant to Rule 12(b)(6). (Doc. 13 at 2) 25 II. LEGAL STANDARDS 26 To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “a 27 short and plain statement of the claim showing the pleader is entitled to relief” so the 28 defendant is given fair notice of the claim and the grounds upon which it rests. Bell Atl. 1 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Rule 8(a)(2)). A court may dismiss 2 a complaint for failure to state a claim under Rule 12(b)(6) for two reasons: (1) lack of a 3 cognizable legal theory, or (2) insufficient facts alleged under a cognizable legal theory. 4 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When deciding a 5 motion to dismiss, all allegations of material fact in the complaint are taken as true and 6 construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 7 1063, 1067 (9th Cir. 2009). 8 Typically, on a motion to dismiss, a court may not consider facts outside the 9 pleadings, otherwise the motion to dismiss converts to a motion for summary judgment. 10 See Rule 12(d). However, when a plaintiff refers extensively to a document or the 11 document “forms the basis of the plaintiff’s claim” the document may be incorporated by 12 reference. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (citing Van Buskirk 13 v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). “When a document is 14 incorporated by reference, ‘the district court may treat such a document as part of the 15 complaint, and thus may assume that its contents are true for purposes of a motion to 16 dismiss under Rule 12(b)(6).’” Khoja v. Orexigen Therapeutics, Inc., No. 15-CV-540 JLS 17 (JLB), 2020 WL 6395629, at *5 (S.D. Cal. Nov. 2, 2020) (quoting Ritchie, 342 F.3d at 18 908). 19 III. DISCUSSION 20 First, the Court will summarize the relevant facts. Plaintiff, a woman of Asian Indian 21 descent and Indian nationality, was hired around September 2017 to teach Java courses at 22 MCCCD schools as an adjunct residential faculty member. (Doc. 12 at ¶¶9,11,13) MCCCD 23 considers new faculty “probationary” employees for five years. (Docs. 12 at ¶80; 13-1 at 24 19–21) Probationary employees submit to a review process each year. (Doc. 13-1 at 19– 25 21) A document called the Residential Faculty Policies (“RFP”) governs the employment 26 of all MCCCD residential faculty, including probationary faculty. (Doc. 12 at ¶17) Plaintiff 27 did not attach the RFP to the First Amended Complaint, but she references it extensively. 28 (Doc. 12 at ¶¶17,43, 72–87, 116, 127, 129–32, 184–85, 189–90) Defendants attached it to 1 the Motion to Dismiss. (Doc. 13-1) The RFP is therefore incorporated by reference and the 2 Court may assume its contents are true. See Khoja, 2020 WL 6395629 at *5. 3 Plaintiff alleges Defendants violated the RFP numerous times. The provisions at 4 issue are Sections 3.6. et seq. “Probationary Faculty Peer Assistance and Review,” 3.8. et 5 seq. “Legal Rights,” 3.12. et seq. “Faculty Member Dismissal—Probationary and 6 Appointive,” and 6. et seq. “Conflict Management System.” (Docs. 12 at ¶¶74–78; 13 at 3, 7 9, 17) The parties disagree about the interpretation and application of the above sections. 8 The Court will take the terms of the RFP as true and resolve any ambiguities in favor of 9 Plaintiff. See Hearn v. R.J. Reynolds Tobacco Co., 279 F. Supp. 2d 1096, 1102 (D. Ariz. 10 2003) (at the motion to dismiss stage, the district court must “resolve any ambiguities in 11 the considered documents” in plaintiff’s favor.) (internal citations omitted). 12 The alleged discriminatory conduct is as follows: Plaintiff alleges Santicola 13 removed her from her position as CIS Program Director, changed her preferred Java 14 courses to Microsoft Office courses, and switched her class schedule to nighttime instead 15 of day. (Doc. 12 at ¶¶20–21,23,32–42) Plaintiff alleges the changes in courses and schedule 16 came after she complained about her removal from the CIS Program Director position to 17 Amy Diaz, Vice President of Academic Affairs at GWCC. (Doc. 12 at ¶14, 32–42) Plaintiff 18 alleges Defendants put white males in her former roles instead. (Doc. 12 at ¶¶23,32–42) 19 She also alleges she was denied the program director position a second time, contrary to 20 Santicola’s prior representations that she would be eligible later. (Doc. 12 at ¶¶40–42) 21 Plaintiff further alleges someone lodged an internal HR complaint against her, also after 22 she complained. (Doc. 12 at ¶29–30) Plaintiff does not know what was in the complaint or 23 who authored it. (Doc. 12 at ¶31) Finally, Plaintiff alleges Wise would not recommend 24 Plaintiff’s contract be renewed despite a recommendation of renewal from the Peer 25 Assistance and Review Committee (“PARC”), resulting in the end of Plaintiff’s 26 employment with MCCCD. (Doc. 12 at ¶¶49–52) Wise allegedly submitted a letter to the 27 Interim Chancellor with her reasons for recommending nonrenewal. (Doc. 12 at ¶53) The 28 Interim Chancellor referenced Wise’s letter in his letter to Plaintiff informing her of the 1 decision. (Doc. 12 at ¶¶53) The reasons provided were intellectual dishonesty, exploitation 2 of students, not meeting professional standards, and not prioritizing responsibilities. (Doc. 3 12 at ¶59) Plaintiff claims these reasons and/or allegations were fabricated, and also never 4 discussed with her. (Doc. 12 at ¶¶59–60,62–63) Plaintiff further states she was not given 5 the chance to improve, like other white faculty members “under similar circumstance, such 6 as due process.” (Doc. 12 at ¶69) 7 A. Count One: Section 1983 Fourteenth Amendment equal protection 8 violations against Defendants MCCCD and Wise 9 “To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection 10 Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with 11 an intent or purpose to discriminate against the plaintiff based upon membership in a 12 protected class.” Sampson v. Cty. of Los Angeles by & through Los Angeles Cty. Dep’t of 13 Children & Family Servs., 974 F.3d 1012, 1022 (9th Cir. 2020) (quoting Lee v. City of Los 14 Angeles, 250 F.3d 668, 686 (9th Cir. 2001)). 15 As a threshold matter, Wise asserts qualified immunity for this claim. (Doc. 13 at 16 6) “Determining whether [state] officials are owed qualified immunity involves two 17 inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, 18 the facts alleged show the officer’s conduct violated a constitutional right; and (2) if so, 19 whether the right was clearly established in light of the specific context of the case.” 20 Martinez v. Town of Prescott Valley, 467 F. Supp. 3d 786, 792 (D. Ariz. 2020). “A clearly 21 established right is one that is sufficiently clear that every reasonable official would have 22 understood that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 23 (2015) (internal quotations omitted). “Put simply, qualified immunity protects all but the 24 plainly incompetent or those who knowingly violate the law.” Id. at 12 (internal quotations 25 omitted). The “clearly established” inquiry must be “undertaken in light of the specific 26 context of the case.” Id. As to the second prong, there must be more than conclusory 27 allegations that the defendant knew or should have known she was violating the established 28 right. See Canzoneri v. Prescott Unified Sch. Dist., No. CV-20-08033-PCT-SMB, 2020 1 WL 7047656, at *5 (D. Ariz. Dec. 1, 2020). Furthermore, “[i]f officers of reasonable 2 competence could disagree on whether a course of conduct is constitutional, immunity 3 should be recognized.” Sampson, 974 F. Supp. 3d at 792 (citing Brewster v. Bd. of Educ. 4 Of Lynwood Unified Sch. Dist., 149 F.3d 971, 977 (9th Cir. 1998) (internal quotations 5 omitted)). 6 A school official is not entitled to qualified immunity on an equal protection claim 7 if the plaintiff can allege facts showing she was treated differently based on her race, 8 because any reasonable school official should know “it is a constitutional violation to treat 9 the employees he or she supervises differently on the basis of race.” Eaglesmith v. Ray, 10 No. 2:11-CV-00098 JAM, 2011 WL 4738338, at *9 (E.D. Cal. Oct. 6, 2011). The right to 11 equal protection in employment is clearly established. However, the question is whether, 12 by removing Plaintiff from her program director position and not renewing her contract, 13 Wise knowingly violated that right. 14 First, as Defendants point out in the instant Motion, Plaintiff failed to allege how 15 Wise was involved in removing Plaintiff from her program director position. (Doc. 13 at 16 7) The First Amended Complaint states it was Santicola who did so. See supra Section III. 17 Plaintiff alleges Wise did not recommend her for contract renewal in retaliation for her 18 complaints of discrimination. (Doc. 12 at ¶¶49–52) MCCCD ultimately did not rehire 19 Plaintiff for another year. (Doc. 12 at ¶52) However, Plaintiff does not make any 20 allegations about Wise’s state of mind. She asserts Wise recommended nonrenewal to 21 retaliate against her for reporting discrimination but provides no factual basis for the claim. 22 Typically, the alleged discrimination must be more overt and the official’s state of 23 mind more apparent. See, e.g., Vejo v. Portland Pub. Sch., 737 F. App’x 309, 311–12 (9th 24 Cir. 2018) (school officials granted qualified immunity when plaintiff failed to supply facts 25 supporting bare allegations that the termination of her internship as a school counselor was 26 motivated by racial discrimination); Williams v. Alhambra Sch. Dist. No. 68, 234 F. Supp. 27 3d 971, 978–79 (D. Ariz. 2017) (school board members denied qualified immunity when 28 African-American plaintiff showed she was terminated from her position as superintendent 1 after a board member told her the board wanted to replace her and her peers with Latino 2 candidates); Eaglesmith, 2011 WL 4738338 at *1, 9 (school official denied qualified 3 immunity when they ostracized plaintiff, questioned his spiritual beliefs, used derogatory 4 terms, gave an “unsatisfactory” performance evaluation, and refused to rehire him). 5 Therefore, because of the lack of allegations about Wise’s state of mind, qualified 6 immunity applies to Wise. 7 As for the claim against MCCCD, Plaintiff alleged in the First Amended Complaint 8 that she was intentionally discriminated against due to her status as a member of a protected 9 class, and that she was also retaliated against for her complaints of discrimination. (Doc. 10 12 ¶¶112–14) These are technically two different claims, though they are pled as one. The 11 Court will address the racial discrimination claim first. 12 “Intentional discrimination means that a defendant acted at least in part because of 13 a plaintiff’s protected status.” Vejo, 737 F. App’x at 311 (internal quotations omitted). 14 Plaintiffs must allege the defendant’s actions stemmed from discriminatory motivations. 15 Id. at 311–12. 16 Here, Plaintiff alleged MCCCD intentionally discriminated against her, a female of 17 Asian Indian descent and Indian nationality, by removing her from her position as Program 18 Director and from the classes she preferred. See supra Section III. Plaintiff does not allege 19 any facts supporting racial motivation for the actions taken by MCCCD, other than the fact 20 that she was replaced by white males. (Doc. 12 at ¶¶23, 32–42) While she alleges white 21 employees were treated differently after facing the same internal allegations she faces, she 22 fails to name a single specific incident of disparate treatment or supply any facts to support 23 the bare allegations. (Doc. 12 at ¶69) Plaintiff also fails to state why she thinks her removal 24 from her position and ultimate nonrenewal were racially motivated. Her allegations are 25 insufficient to state a claim of intentional discrimination 26 To state a valid First Amendment claim for retaliation against a government official, 27 a plaintiff must show three things: “that (1) [s]he was engaged in a constitutionally 28 protected activity, (2) the defendant’s actions would chill a person of ordinary firmness 1 from continuing to engage in the protected activity and (3) the protected activity was a 2 substantial or motivating factor in the defendant’s conduct.” O’Brien v. Welty, 818 F.3d 3 920, 932 (9th Cir. 2016) (citing Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755 (9th Cir. 4 2006)). 5 Plaintiff alleges she was retaliated against after she complained about unfair 6 treatment. See supra Section III. The Court finds she has met the first two elements of the 7 claim for retaliation, but not the third: (1) She was engaged in a protected activity by 8 voicing her concerns to an administrator and (2) being removed from a favorable schedule 9 and then terminated would “chill a person of ordinary firmness.” O’Brien, 818 F.3d at 932. 10 However, she has not pled sufficient allegations to show her complaint was the reason 11 behind Defendant’s conduct. Plaintiff claims the removal from her preferred schedule was 12 after she complained about being removed as Program Director and the ultimate retaliation 13 was her termination. See supra Section III. She pleads no other facts to show a causal link 14 between the events. In O’Brien, the student plaintiff faced a series of sanctions and 15 restrictions from his university directly related to his activities; the sanctions prevented him 16 from engaging in political speech — the protected activity in question. 818 F.3d at 934– 17 35. Here, Plaintiff alleges she was “retaliated against” after complaining, but the internal 18 HR complaint against her is a possible intervening factor. Plaintiff does not know the 19 contents of the complaint, yet she expects the Court to assume the actions against her were 20 directly motivated by her protests to administration, not by the HR complaint. See supra 21 Section III. The Court cannot make such an assumption. Therefore, Plaintiff has not 22 properly pled a First Amendment Claim for retaliation. 23 Overall, Plaintiff fails to state a § 1983 equal protection violation claim against 24 either Wise or MCCCD. 25 B. Count Two: Denial of a property right without due process against 26 Defendants MCCCD and Wise 27 To state a claim under § 1983 for a denial of due process, a plaintiff must “identify 28 a protected property or liberty interest.” Schwake v. Arizona Bd. of Regents, 821 F. App’x 1 768, 770 (9th Cir. 2020) (citing United States v. Guillen-Cervantes, 748 F.3d 870, 872 (9th 2 Cir. 2014)). A constitutionally cognizable property interest in a benefit, like a job, requires 3 more than an abstract desire or unilateral expectation; “there must be a legitimate claim of 4 entitlement.” Guillen-Cervantes, 748 F.3d at 872 (quoting Town of Castle Rock v. 5 Gonzales, 545 U.S. 748, 756 (2005) (quoting Bd. of Regents of State Colls. v. Roth, 408 6 U.S. 564, 577 (1972))). “This typically requires an individual to demonstrate that an 7 existing law, rule, or understanding makes the conferral of a benefit “mandatory.” Guillen- 8 Cervantes, 748 F.3d at 872. Public college employment policies may secure employee 9 interests by creating the terms under which the faculty member is employed. See Roth, 408 10 U.S. at 578 (discussion of plaintiff’s appointment terms and the absence of any state 11 university policy regarding re-employment of a fixed-term temporary employee). 12 A school official is entitled to qualified immunity on a violation of procedural due 13 process claim as long as “their conduct does not violate clearly established law of which a 14 reasonable person would have known.” King v. Garfield Cty. Pub. Hosp. Dist. No. 1, 641 15 F. App’x 696, 698 (9th Cir. 2015) (internal citation omitted). “[P]rocedural due process 16 requirements can rarely be considered clearly established[,] at least in the absence of 17 closely corresponding factual and legal precedent.” Id. (citing Shinault v. Hawks, 782 F.3d 18 1053, 1059 (9th Cir. 2015). See also Pavel v. Univ. of Oregon, 774 F. App’x 1022, 1024 19 (9th Cir. 2019), cert. denied, 140 S. Ct. 608, 205 L. Ed. 2d 388 (2019). Unlike the equal 20 protection context, state of mind is irrelevant in the due process qualified immunity 21 analysis. See King, 641 F. App’x at 698. If an official reasonably could have believed her 22 conduct was lawful, she is entitled to qualified immunity. Id. (citing Levine v. City of 23 Alameda, 525 F.3d 903, 906–07 (9th Cir. 2008)). 24 Plaintiff’s employment was governed by the Residential Faculty Policies (“RFP”). 25 (Doc. 12 at ¶17) She was in her probationary period, so the RFP required her to undergo 26 “Probationary Faculty Peer Assistance and Review.” (Doc. 12 at ¶43) Probationary faculty 27 are assigned a review committee (the PARC) to evaluate their progress and make a 28 recommendation to the College President on whether to renew the faculty member’s 1 contract. (Doc. 12 at ¶44–45) Plaintiff alleges Section 3.12. of the RFP provides specific 2 due process procedures if a faculty member is recommended for dismissal. (Doc. 12 at ¶78) 3 She alleges Wise (and MCCCD) did not follow those procedures for her dismissal. (Doc. 4 12 at ¶79) Plaintiff further alleges Section 3.12. created a property right for her continued 5 employment. (Doc. 12 at ¶129) She alleges Wise “concocted false charges against 6 Plaintiff” to terminate her using the PARC process. (Doc. 12 at ¶132) Defendants argue 7 Section 3.6.7.4. applies here, not Section 3.12. (Doc. 13 at 17) Defendants argue the 8 process set forth in Section 3.6.7.4. for probationary employees was followed and Wise did 9 not recommend renewal for Plaintiff, which was permissible under the RFP. (Doc. 13 at 10 8–9) Defendants state Plaintiff is conflating the terms within the RFP’s sections, as well as 11 adding requirements that simply do not exist, to assert her due process violation. (Doc. 20 12 at 8–9) Taking the facts in the First Amended Complaint and in the document incorporated 13 by reference as true, the Court finds Section 3.6.7.4. governs here. 14 Section 3.6.7.4.1. states “[w]hile Residential Faculty are originally employed with 15 the intention that they are continuing employees, the Chancellor (upon the advice of a 16 College President) may determine that a Probationary Faculty member’s contract not be 17 renewed.” (Doc. 13-1 at 30) (emphasis added). Section 3.6.7.4.2. requires the College 18 President, here Wise, to recommend to the Chancellor, here the Interim Chancellor, “in 19 writing that the Probationary Faculty member not be renewed,” including the reasons for 20 nonrenewal. (Doc. 13-1 at 30) Section 3.6.7.4.3. provides, if the Chancellor agrees, “the 21 Chancellor or designee will deliver the notice of intent to recommend nonrenewal” to the 22 faculty member. (Doc. 13-1 at 30) That notice must also include the reasons for 23 nonrenewal. (Doc. 13-1 at 30) Finally, Section 3.6.7.4.4. states “Probationary Faculty who 24 are nonrenewed are no longer employed as Residential Faculty.” (Doc. 13-1 at 30) 25 Section 3.12. states “[a] Faculty member who is recommended, by the College 26 President, through the Vice Chancellor for Human Resources, for dismissal shall have 27 access to the following due process procedures.” (Doc. 13-1 at 33) (emphasis added). 28 Section 3.12.1. requires the College President to write a statement of charges, which is then 1 forwarded to the Vice Chancellor for HR, who then reviews the statement and may 2 recommend to the Chancellor there “exists prima facie cause for the dismissal of a Faculty 3 Member. (Doc. 13-1 at 33) “The Vice Chancellor for Human Resources shall inform the 4 Chancellor in writing, with a copy of the recommendation being sent…to the Faculty 5 member at his/her place of residence…” (Doc. 13-1 at 33) Section 3.12.2. states the written 6 statement of charges shall be provided to the Vice Chancellor for HR and the Faculty 7 member “as an attachment to the notification outlined in the preceding paragraph.” (Doc. 8 13-1 at 33) 9 Plaintiff clearly alleges she was recommended for nonrenewal. (Doc. 12 at ¶¶50– 10 53) Although that resulted in her dismissal, she was not recommended for dismissal under 11 Section 3.12. Her recommendation for nonrenewal came after the yearly PARC process, 12 which is detailed in Section 3.6.7., of which Section 3.6.7.4. is a part. (Docs. 12 at ¶50, 13- 13 1 at 29–30) The facts asserted and the plain language of the RFP show Section 3.6.7.4. was 14 the process in play when Plaintiff was ultimately terminated. 15 The Court finds Section 3.6.7.4. may establish a property right because it provided 16 a detailed procedure for nonrenewal. This section and the previous section (3.6.7.) establish 17 a bilateral expectation of renewal unless the proper procedure is followed. See Guillen- 18 Cervantes, 748 F.3d at 872; see also Roth, 408 U.S. at 578. 19 Under Section 3.6.7.4.1., Wise fulfilled her part in the procedure by putting the 20 charges against Plaintiff in writing and sending them to the appropriate person. Plaintiff 21 has not shown Wise acted in violation of the procedure. Plaintiff argues in her Response 22 Wise was constrained by the criteria of Section 3.6. in making her recommendation to the 23 Interim Chancellor. (Doc. 17 at 3) Having read the RFP, the Court can find no requirement 24 limiting the College President to the criteria considered by the PARC. The RFP states that 25 the PARC makes a recommendation based on the Probational Faculty’s Individual 26 Development Plan, which covers the criteria listed in Section 3.6.2. Following the PARC’s 27 recommendation, the College President makes her own recommendation to the Chancellor. 28 Following that recommendation, the Chancellor makes a determination. By the very 1 definition of the word, a recommendation is a “suggestion.” See Recommendation, 2 MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/recommendation (last 3 visited March 17, 2021). The RFP does not require the College President follow the same 4 criteria as the PARC when making her own recommendation, or even to follow the PARC’s 5 recommendation. Even if Wise was limited to following the Section 3.6.2. criteria, the 6 reasons given for termination fall under 3.6.2.1. Instruction or Primary Work activity. 7 (Doc. 13-1 at 25) 8 Thus, Wise is entitled to qualified immunity on the due process claim. The Court 9 further finds MCCCD did not violate the procedure for nonrenewal. Plaintiff had a PARC 10 review, the College President provided a written recommendation to the Interim 11 Chancellor, and Plaintiff was notified of her nonrenewal and the reasons for it. There are 12 no further requirements under the RFP. 13 Plaintiff has failed to state a § 1983 claim against MCCCD for violation of a 14 protected property interest. 15 C. Count Three: Violation of liberty interest under the Fourteenth 16 Amendment against Defendants MCCCD and Wise 17 A terminated public employee “has a constitutionally based liberty interest in 18 clearing his name when stigmatizing information regarding the reasons for the termination 19 is publicly disclosed.” Cox v. Roskelley, 359 F.3d 1105, 1110 (9th Cir. 2004) (citing Roth, 20 408 U.S. at 573). The employee is entitled to a “name-clearing hearing” in such a 21 circumstance, otherwise her Fourteenth Amendment due process right is violated. Id. 22 “Public disclosure” has been found in several different circumstances. See, e.g., Tibbetts v. 23 Kulongoski, 567 F.3d 529, 530 (9th Cir. 2009) (information published in press releases); 24 Guzman v. Shewry, 552 F.3d 941, 955–56 (9th Cir. 2009) (reported to a database); Cox, 25 359 F.3d at 1110 (in a letter placed in an employee’s file available to the public upon 26 request); Campanelli v. Bockrath, 100 F.3d 1476, 1478 (9th Cir. 1996) (in published news 27 articles); and Graham v. Dysart Unified Sch. Dist. No. 89, No. CV-10-0507-PHX-MHB, 28 2010 WL 3401464, at *7 (D. Ariz. Aug. 26, 2010) (at a termination hearing). Whether 1 information is “stigmatizing” is usually a question of fact, but charges made by an 2 employer have been found stigmatizing when they involve accusations of fraud, “immoral 3 conduct,” or “offensive conduct.” Kramer v. Cullinan, 878 F.3d 1156, 1162 (9th Cir. 2018) 4 (citing Guzman, 552 F.3d at 946, Campanelli, 100 F.3d at 1480, and Vanelli v. Reynolds 5 Sch. Dist., 667 F.2d 773, 776–78 (9th Cir. 1982)). 6 The qualified immunity analysis for liberty interest violations hinges on whether the 7 state officer should have been aware that publicizing “stigmatizing” information about the 8 employee was “unlawful absent a name-clearing hearing.” Cox, 359 F.3d at 1112. Whether 9 the law clearly establishes a right depends on whether there is closely controlling precedent 10 showing the kind of charges made against the employee are considered stigmatizing. See 11 Kramer, 878 F.3d at 1163–64. 12 Plaintiff alleges Wise charged her with intellectual dishonesty, exploitation of 13 students, not meeting professional standards, and not prioritizing responsibilities. See 14 supra Section III. It is clearly established in the Ninth Circuit that an “employer charging 15 an employee with… dishonesty … is required under the Fourteenth Amendment to afford 16 that employee a name-clearing hearing.” Kramer, 878 F.3d at 1164. Of course, the 17 allegation of dishonesty must also be publicly disclosed. Id. at 1162. Here, it is unclear 18 whether the letter containing the charges against Plaintiff was publicly disclosed. Plaintiff 19 alleged the letter was “published” to the Interim Chancellor, then again “published” to her. 20 (Doc. 12 at ¶¶142–43) Plaintiff cites no precedent to show sending a letter to another 21 internal employee is publication for the purposes of a § 1983 liberty interest claim. She 22 argues the publication analysis for liberty interest is the same as defamation, and that 23 internal publication is “public disclosure,” but this is not so. The Ninth Circuit has held 24 that internal publications, i.e., the publishing of a letter to an employee file, are not 25 publication for the purposes of the liberty interest analysis when they are not subject to 26 external public disclosure. See Whitworth v. Regents of Univ. of California, 274 F. App’x 27 559, 562 (9th Cir. 2008) (distinguishing Cox, 359 F.3d at 110–12). Plaintiff did not state 28 that anyone saw the letter besides the Interim Chancellor and herself. Furthermore, even if 1 the letter was placed in Plaintiff’s personnel file, RFP Section 3.9. states “only authorized 2 personnel will be permitted to view employee files.” (Doc. 13-1 at 31) Thus, the Court 3 finds the letter was not subject to public disclosure. Without closely controlling precedent, 4 the Court is unable to find a reasonable state officer in Wise’s shoes would have known 5 that sending the letter to the Interim Chancellor was a publication of stigmatizing 6 information in violation of plaintiff’s liberty interest that entitled her to a name-clearing 7 hearing, because the Court cannot find the action is, in fact, a violation. Therefore, not only 8 is Wise entitled to qualified immunity, but Plaintiff has also failed to sufficiently plead a 9 publication for § 1983 purposes. See Whitworth, 274 F. App’x at 562. 10 D. Count Four: Equal rights violation under 42 U.S.C. § 1981 against all 11 Defendants 12 Section 1981 protects the right to enter and enforce contracts of all citizens, 13 regardless of race. 42 U.S.C. § 1981. To state a claim under § 1981, a plaintiff must (1) 14 identify a contractual relationship under which her rights have been impaired and (2) 15 “plausibly allege that the defendant impaired that relationship on account of intentional 16 discrimination.” Astre v. McQuaid, 804 F. App’x 665, 666 (9th Cir. 2020) (citing Domino’s 17 Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006) and Gen. Bldg. Contractors Ass’n, Inc. 18 v. Pa., 458 U.S. 375, 391 (1982)). “[A § 1981] plaintiff must initially plead and ultimately 19 prove that, but for race, it would not have suffered the loss of a legally protected right.” 20 Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 589 U.S. ___, 140 S. Ct. 1009, 21 1019, (2020) (emphasis added). In other words, a plaintiff must show the defendant would 22 have treated her differently if she were white. Id. This but-for test differs from past Ninth 23 Circuit precedent that stated a plaintiff only had to show race played “some role” in the 24 defendant’s decision-making process. Id. 25 Plaintiff alleges Defendants denied her the opportunity to continue teaching in the 26 “Year Up Program, Java courses, and daytime courses,” which she seems to allege were 27 part of her employment contract. (Doc. 12 at ¶151) She further alleges she was denied her 28 rights under the contract when she was terminated. (Doc. 12 at ¶152) Plaintiff alleges the 1 benefits she was denied were given to males “who were predominantly white,” and “white 2 employees have not been terminated or disciplined for actions allegedly engaged in by 3 Plaintiff…” (Doc. 12 at ¶¶153–54) She stated she was removed from teaching specific 4 courses after the HR complaint against her was filed. (Doc. 12 at ¶¶31–37) Plaintiff does 5 not know the contents of the internal complaint or who filed it but alleges it was a 6 retaliatory action by Defendants. (Doc. 12 at ¶¶31,178) It is unclear how Plaintiff knows 7 white employees were treated differently for the same allegations if she does not know the 8 contents of the allegations against her. 9 In order to meet the “but for” standard of § 1981, Plaintiff would need to show she 10 had been demoted and then terminated for a specific action, then show a white employee 11 who had not been demoted or terminated for the same action. See Ashcroft v. Iqbal, 556 12 U.S. 662, 678 (2009) (“A pleading that offers ‘labels and conclusions’ or ‘a formulaic 13 recitation of the elements of a cause of action will not do.’”) (quoting Twombly, 550 U.S. 14 at 555). Plaintiff’s allegations that white faculty were treated differently are conclusions 15 unsupported by facts. She has failed to state a § 1981 claim. 16 E. Count Six: Defamation and libel per se against Defendants Wise and 17 Santicola 18 “One who publishes a false and defamatory communication concerning a private 19 person ... is subject to liability, if, but only if, he (a) knows that the statement is false and 20 it defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently 21 in failing to ascertain them.” Norton v. Arpaio, No. CV-15-00087-PHX-SPL, 2018 WL 22 5793059, at *4 (D. Ariz. Sept. 25, 2018) (citing Dube v. Likins, 216 Ariz. 406, 417 (Ct. 23 App. 2007)). Truth is a defense. Id. (citing Godbehere v. Phoenix Newspapers, Inc., 162 24 Ariz. 335, 341 (1989)). 25 State officials are entitled to immunity when exercising discretionary authority. 26 Cesare v. Pima, Cty. of, No. CV1402514TUCCKJEJM, 2015 WL 13741218, at *15 (D. 27 Ariz. Dec. 7, 2015), report and recommendation adopted sub nom. Cesare v. Pima Cty., 28 No. CIV142514TUCCKJEJM, 2016 WL 836873 (D. Ariz. Mar. 4, 2016). “State officials 1 are acting within their discretionary authority when they set policy or perform an act that 2 inherently requires the exercise of their judgment or discretion.” Id. (quoting Carroll v. 3 Robinson, 178 Ariz. 453, 457 (Ct. App. 1994)). 4 Plaintiff claims Wise and Santicola defamed her when Wise wrote a letter to the 5 Interim Chancellor “falsely accusing Plaintiff of intellectual dishonesty, exploitation of 6 students, not meeting professional standards, and not prioritizing responsibilities.” (Doc. 7 12 at ¶¶50,57,59-60) Plaintiff’s First Amended Complaint states Santicola “collaborated” 8 with Wise. (Doc. 12 at ¶61, 167–68) However, Plaintiff only Wise’s name is alleged to be 9 on the letter to the Interim Chancellor and he allegedly cited only Wise in the termination 10 letter to Plaintiff. (Doc. 12 at ¶52,57,170) 11 Defendants deny the statements were false and argue even if they were, they were 12 (1) made while Wise was exercising discretion, (2) made internally and (3) mere statements 13 of opinion, which cannot be defamatory. (Doc. 13 at 14–15) While the Court disagrees that 14 the latter two points absolve Wise, the Court does find she was exercising discretionary 15 authority when she wrote the letter containing the statements at issue. 16 RFP Section 3.6.7.4.2. states “If, after reviewing the PARC recommendation, the 17 College President determines the Probationary Faculty member should not be renewed, the 18 College President shall recommend to the Chancellor in writing that the Probationary 19 Faculty Member not be renewed. The recommendation shall include the reasons for 20 nonrenewal.” (Doc. 13-1 at 30) 21 Plaintiff argues in her Response the reasons given for nonrenewal were outside the 22 factors considered by the PARC and were thus outside Wise’s discretionary authority under 23 the RFP. (Doc. 17 at 11) Plaintiff argues because the RFP also states “If the [conditions of 24 Section 3.6.] are not met, the probationary period may be extended an additional semester 25 for each deficient semester,” (Doc. 13-1 at 14), she should have not been recommended for 26 nonrenewal. (Doc. 17 at 11) The Court views the language provided by the Plaintiff and 27 the plain language of the RFP to mean that it was up to the College President’s discretion 28 to recommend Plaintiff for renewal or nonrenewal. The RFP does not say the President is 1 required to follow the recommendation of the PARC, be it for renewal or nonrenewal. 2 Plaintiff was not automatically entitled to another semester of probation. 3 Moreover, Arizona state courts have historically found privilege in similar 4 situations. See Petroni v. Bd. of Regents, 115 Ariz. 562, 565–66 (Ct. App. 1977) (finding 5 officers who determine academic tenure are entitled to absolute immunity from defamation 6 claims). 7 Therefore, because Wise was a state official exercising discretionary authority, the 8 Court will apply qualified immunity to her. Furthermore, the Court sees no reason the 9 defamation claim should go forward against Santicola. The allegations against him are 10 entirely conclusory and there are no facts alleged to support them. 11 F. Count Eight: Breach of employment contract and wrongful termination 12 under A.R.S. § 23-1501 against MCCCD 13 Claim Eight is technically two claims; a breach of the offer of employment and a 14 breach of the RFP, both brought under the Arizona Employment Protection Act (“AEPA”), 15 specifically A.R.S. § 23-1501. As a threshold matter, the statute of limitations to bring a 16 breach of contract claim under AEPA is one year, as set forth in A.R.S. § 12-541(3). See 17 Shumway v. DHL Express (USA), Inc., No. CV 06-1188-PHX-DKD, 2008 WL 11338792, 18 at *4–6 (D. Ariz. Sept. 29, 2008). Defendants argue the breach of the offer of employment 19 is barred by the statute of limitations. (Doc. 13 at 16) Plaintiff was “informed in writing” 20 on August 3, 2019 that she would not be offered the Program Director position for the fall 21 semester. (Doc. 13 at 16) Plaintiff filed the initial Complaint on August 4, 2020 — one day 22 after the year statute of limitations expired. (Doc. 1) Plaintiff argues the statute of 23 limitations may be tolled if the defendant fraudulently concealed the cause of action. (Doc. 24 17 at 16) Plaintiff argues because she was unfamiliar with GWCC’s College Plan and 25 because Santicola was not forthcoming about the requirements for Program Director, her 26 cause of action did not accrue until September of 2019. (Doc. 17 at 16–17) Defendants 27 respond Plaintiff should have been on notice of the possible claim in August and nothing 28 Santicola said to her prevented her from realizing she would not be offered the Program 1 Director position. (Doc. 20 at 12) 2 Arizona courts toll the statute of limitations for fraudulent concealment. Diaz v. 3 Arizona, No. CV 11-02337-PHX-FJM, 2012 WL 1203692, at *4 (D. Ariz. Apr. 11, 2012), 4 aff’d, 555 F. App’x 698 (9th Cir. 2014). However, the burden is on the plaintiff to prove 5 such concealment occurred. Id. “The doctrine of fraudulent concealment is invoked only if 6 the plaintiff pleads and proves facts showing that defendants ‘affirmatively misled’ them, 7 and that plaintiffs ‘had neither actual nor constructive knowledge of the facts giving rise to 8 [their] claim despite [their] diligence in trying to uncover those facts.” Id. (quoting Conmar 9 Corp. v. Mitsui & Co. (U.S.A.), Inc., 858 F.2d 499, 502 (9th Cir.1988)). Plaintiff here has 10 failed to show Defendants “affirmatively misled” her despite her “diligence in trying to 11 uncover [the] facts.” Id. The Court will not toll the statute of limitations and finds it has 12 run on the breach of the offer of employment claim. 13 Turning to the breach of the RFP claim, Defendants claim the RFP is not an 14 employment contract under the AEPA and thus Plaintiff cannot bring this claim. (Doc. 13 15 at 16) Alternatively, Defendants argue Plaintiff has failed to plead a breach. (Doc. 13 at 16 17) Plaintiff argues A.R.S. §§ 23-1501(A)(1) and (2) identify her employment as 17 contractual, the RFP dictated the terms of her employment, her employment was intended 18 to be continuing, and she was unlawfully terminated, constituting a breach. (Doc. 17 at 16) 19 “The employment relationship is contractual in nature.” A.R.S. § 23-1501(A)(1). 20 Employment relationships are severable at will unless there is a written, signed contract 21 stating otherwise or if the employment handbook “expresses the intent that it is a contract 22 of employment” and sets forth restrictions on the right of either party to terminate the 23 employment relationship. § 23-1501(A)(2). See also Corzo v. Maricopa Cty. Cmty. Coll. 24 Dist., No. CV-15-02552-PHX-ESW, 2016 WL 3392264, at *4 (D. Ariz. June 14, 2016). 25 Therefore, the RFP must express the intent that it is a contract. See id. The Court examined 26 the language in Sections 1.1.3. and 1.1.4. of the RFP and found it parallel to the language 27 the employee plaintiff in Corzo cited from the MCCCD information technology employee 28 handbook, which was found to sufficiently indicate an intent that the handbook was a 1 | contract of employment. No. CV-15-02552-PHX-ESW, ECF Nos. 16 at 5—6, 22 at 2 (D. 2| Ariz. 2016). The RFP states that the Faculty and Administration adopted it to establish the 3 terms and conditions governing employment. (Doc. 13-1 at 9) The Court finds this 4| language sufficient to establish intent that the RFP is an employment contract under A.R.S. § 23-1501(A)(2). 6 As to whether there was a breach, the Court found Section 3.6.7.4. applied to 7 | Plaintiff's employment and nonrenewal and that Defendant followed the procedure set 8 | forth in Section 3.6.7.4. during her nonrenewal process. See supra Section III.B. Therefore, 9| Plaintiff has failed to plead a breach of employment contract claim as to the breach of the 10 | RFP against MCCCD. 11 G. Count Nine: Breach of implied covenant of good faith and fair dealing 12 against MCCCD 13 As Defendants state in their Motion to Dismiss and as Plaintiff fails to address in 14| her Response, this Court has held AEPA precludes claims for the breach of implied 15 | covenant of good faith and fair dealing. See Thorp v. Home Health Agency--Arizona, Inc., 16| 941 F. Supp. 2d 1138, 1143 (D. Ariz. 2013) (citing A.R.S. § 23—-1501(3)(a)-(c)). When a 17 | terminated employee brings claims under AEPA, as Plaintiff does here, she cannot also 18 | bring a claim for the breach of implied covenant of good faith and fair dealing. /d. 19 | This claim therefore will be dismissed. 20 Therefore, 21 IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 13) is granted. 22 IT IS FURTHER ORDERED that Counts One, Two, Three, Four, Six, Eight, and 23 | Nine are dismissed with prejudice. 94 Dated this 24th day of March, 2021. 25 Ae 26 United States District Ladue 27 28