Schneider v. Scottsdale Unified School District No. 48

• Court: District Court, D. Arizona
• Decided: March 28, 2022
• Docket: 2:21-cv-01521
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Brooke Schneider, ) No. CV-21-01521-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Scottsdale Unified School District No. ) 12 48, ) 13 ) ) 14 Defendants. )

15 Before the Court is Defendant Scottsdale Unified School District No. 48’s 16 (“Defendant”) Motion to Dismiss (Doc. 25) in which Defendant moves the Court—under 17 Federal Rule of Civil Procedure 12(b)(6)—to dismiss Plaintiff Brooke Schneider’s 18 (“Plaintiff”) first Amended Complaint for failure to state a claim upon which the Court can 19 grant relief. (Doc. 25 at 1). The Motion is fully briefed and ready for review. (Docs. 25, 20 28, & 29). For the following reasons, this Court will grant the Motion in part and deny the 21 Motion in part. 22 I. BACKGROUND 23 Plaintiff was employed as a teacher at Defendant’s Yavapai Elementary School 24 under two, consecutive, one-year teaching contracts from June 12, 2018 until her 25 resignation on March 16, 2020. (Doc. 21 at 4). In October 2019, near the beginning of 26 Plaintiff’s second year at Yavapai, the school’s principal, Charles Rantala, began looking 27 for a teacher to assist with an after-hours robotics class. (Id. at 7). Plaintiff expressed her 28 interest and agreed to teach the class, with written approval from Rantala. (Id.). The after- 1 school class was not part of Plaintiff’s agreed-upon salaried work, however, so Rantala 2 informed her that he would have to set up a separate billing code. (Id.). Rantala told 3 Plaintiff that the billing code process was started on October 29, 2019, and that it could 4 take up to 10 business days to be completed. (Id.). 5 Rantala apparently delayed in setting up the billing code, however, and Plaintiff 6 logged at least eight (8) after-school hours of unpaid teaching time before the billing code 7 process was completed on November 20, 2019. (Id. at 8). When Plaintiff asked to be paid 8 for those unpaid hours, Rantala’s secretary, Judy Edmonson, told Plaintiff that she could 9 not be paid for that time. (Id.). On December 9, 2019, Plaintiff reported the issue to 10 Defendant’s HR representative and requested a clarification of Defendant’s payment 11 policies (the “Wage and Hour Complaint”). (Id.). The next day, the HR representative sent 12 an email to Rantala concerning the issue; the email included a statement by the HR 13 representative that “We have to pay her for time worked.” (Id.). 14 Over the next two months, Plaintiff alleges various acts of retaliation by Defendant 15 in response to her Wage and Hour Complaint, including a “Letter of Direction” for alleged 16 insubordination from Rantala and two poor performance evaluations from Rantala that 17 demoted her status as a teacher and triggered the issuance of a Notice of Inadequacy and 18 Remediation Plan (“Pre-Terminative Discipline”). (Id. at 8–10). The Pre-Terminative 19 Discipline subjected Plaintiff to dismissal if she failed to satisfy Rantala’s Remediation 20 Plan within forty-five days. (Id. at 10). In February, Plaintiff alleges that she sent a letter 21 complaining about the retaliation to HR, and that she took a doctor-recommended, medical 22 leave of absence from work due to the anxiety and stress she was enduring in the 23 workplace. (Id. at 11–12). 24 On March 16, 2020, Plaintiff alleges that Defendant presented her with “an 25 ultimatum” that required her to either: 26 (i) immediately return to the un-remediated hostile work environment; 27 (ii) obtain approval for indefinite, unpaid FMLA leave; 28 (iii) resign effective March 16, 2020 and pay Defendant $2,000 1 in liquidated damages to be released from her 2019/2020 teaching contract; or 2 (iv) be subject to a finding by the Defendant of contract 3 abandonment and suffer the resulting stigma and professional consequences of that determination. 4 5 (Id. at 14). Plaintiff alleges that her health precluded an immediate return, that she could 6 not afford to take indefinite and unpaid leave, and that a finding of contract abandonment 7 would put her professional future at risk. (Id.). As a result, Plaintiff alleges she had no 8 choice but to resign and pay the liquidated damages. (Id.). 9 Plaintiff alleges that Defendant retaliated against her, in violation of the FLSA, 10 when she complained about Defendant’s failure to pay her at least minimum wage for the 11 after-school hours. (Id. at 15–20). Plaintiff also alleges that her resignation amounted to a 12 constructive discharge, and that she was therefore deprived of her constitutionally 13 protected property interest in continued employment, without Due Process. (Id. at 20–23). 14 II. LEGAL STANDARD 15 To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “a 16 short and plain statement of the claim showing the pleader is entitled to relief” so the 17 defendant is given fair notice of the claim and the grounds upon which it rests. Bell Atl. 18 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Rule 8(a)(2)). A court may dismiss 19 a complaint for failure to state a claim under Rule 12(b)(6) for two reasons: (1) lack of a 20 cognizable legal theory, or (2) insufficient facts alleged under a cognizable legal theory. 21 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When deciding a 22 motion to dismiss, all allegations of material fact in the complaint are taken as true and 23 construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 24 1063, 1067 (9th Cir. 2009). 25 III. DISCUSSION 26 Defendant argues that Plaintiff’s claims fail to state valid legal claims upon which 27 the Court may grant relief and that therefore this Court should dismiss Plaintiff’s Amended 28 Complaint in its entirety. (Doc. 25 at 3). The Court will address Plaintiff’s claims in turn. 1 A. FLSA Retaliation Claim 2 The FLSA’s anti-retaliation provision makes it unlawful “to discharge or in any 3 other manner discriminate against any employee because such employee has filed any 4 complaint . . . under or related to this chapter.” 29 U.S.C. § 215(a)(3). The Ninth Circuit 5 has held that such a complaint does not need to be formally filed with the Department of 6 Labor or in a federal court, but instead may be a complaint made directly to the employer. 7 Lambert v. Ackerley, 180 F.3d 997, 1003–08 (9th Cir. 1999). The complaint may be oral 8 or written, but the key is that the employer is provided with fair notice that the complaint 9 could subject the employer to a later claim of retaliation. Kasten v. Saint-Gobain 10 Performance Plastics Corp., 563 U.S. 1, 13–14 (2011). To establish an FLSA retaliation 11 claim, a plaintiff “must show (1) [s]he is engaged in activity protected by the FLSA; (2) 12 the defendant took an adverse employment action; and (3) there was a causal link between 13 the protected activity and the adverse action.” See, e.g., Ader v. SimonMed Imaging Inc., 14 465 F. Supp. 3d 953, 975 (D. Ariz. 2020). 15 The parties here dispute only whether Plaintiff’s Wage and Hour Complaint 16 constituted an “activity protected by the FLSA.” The Ninth Circuit has not meaningfully 17 addressed the “protected activity” requirement in the FLSA retaliation context. It has, 18 however, dealt with the issue in the Title VII arena. The elements of FLSA and Title VII 19 retaliation claims are the same—both require plaintiffs to show they suffered 20 discrimination or an adverse employment action because they engaged in statutorily 21 protected conduct. Compare Ader, 465 F. Supp. 3d at 975 (stating three-part standard for 22 prima facie FLSA retaliation claim) with Brooks v. City of San Mateo, 229 F.3d 917, 928 23 (9th Cir. 2000) (stating same three-part standard for Title VII retaliation claim). The Court 24 will therefore refer to Title VII caselaw to the extent it is helpful in determining whether 25 Plaintiff’s complaint constituted “protected activity.” See McBurnie v. City of Prescott, 511 26 Fed. Appx. 624, 625 (9th Cir. 2013) (nothing that Title VII anti-retaliation provision is 27 “substantially identical” to FLSA anti-retaliation provision); see also Love v. RE/MAX of 28 Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984) (addressing “protected activity” element 1 under Title VII and holding that its decision was “equally sustainable under the [FLSA]”). 2 In the Title VII context, the Ninth Circuit has held that a Plaintiff’s complaint in 3 opposition to an unlawful employment practice only constitutes protected activity if “it 4 refers to some practice by the employer that is allegedly unlawful.” E.E.O.C. v. Crown 5 Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir. 1983) (emphasis in original). That said, 6 the allegedly unlawful employment practice does not need to be demonstrably unlawful. 7 Id. (citing Sias v. City Demonstration Agency, 588 F.2d 692, 695–96 (9th Cir. 1978)); see 8 also E.E.O.C. v. Luce, Forward, Hamilton & Scripps, 303 F.3d 994, 1005 (9th Cir. 2002). 9 Instead, anti-retaliation protection is accorded “whenever the opposition is based on a 10 ‘reasonable belief’ that the employer has engaged in an unlawful employment practice,” 11 regardless of whether the practice was actually unlawful (the “reasonable belief standard”). 12 Zellerbach, 720 F.2d at 1013; see also Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1411 13 (9th Cir. 1987) (“[T]he employee need only reasonably believe that the employer has 14 engaged in an unlawful employment practice.”); Little v. Windermere Relocation, Inc., 301 15 F.3d 958, 969 (9th Cir. 2001) (“It is unnecessary that the employment practice actually be 16 unlawful.”); Maner v. Dignity Health, 9 F.4th 1114, 1127 (9th Cir. 2021) (“[O]ur 17 precedents have long recognized that [Title VII] protects an employee who opposes 18 employer conduct in the mistaken but reasonable belief that the conduct is unlawful.”).1 19 In the present case, Defendant argues that Plaintiff could not have had a reasonable 20 belief that Defendant engaged in unlawful wage and hour practices because Plaintiff—as 21 a public-school teacher—is exempted from the relevant FLSA minimum wage provisions.2 22

23 1 In fact, “[e]very circuit that has considered the issue . . . has concluded that opposition activity is protected when it is based on a mistaken good faith belief that Title 24 VII has been violated.” Love v. RE/MAX of Am., Inc., 738 F.2d 383, 385 (10th Cir. 1984) 25 (listing cases from various circuits).

26 2 That Plaintiff is exempted from the FLSA’s minimum wage provisions is not in 27 dispute. See 29 U.S.C. § 213(a)(1) (“The [minimum wage provisions] shall not apply with respect to . . . any employee employed in the capacity of . . . teacher in elementary or 28 secondary schools.”). 1 (Doc. 25 at 3). Defendant contends that Plaintiff’s exempt status necessarily renders her 2 Wage and Hour Complaint objectively unreasonable. In making this argument, Defendant 3 is careful to point out that it is not arguing for a “demonstrably unlawful” standard: 4 [Defendant] is not advocating for a rule in which protected activity only arises from opposition to conduct that is 5 “demonstrably unlawful.” [Defendant] simply asks that the Court apply the normal rule that a plaintiff’s belief must be 6 objectively reasonable, with the recognition that when the statute at issue explicitly provides that the conduct at issue is 7 not unlawful, the plaintiff’s contrary belief cannot be said to be “reasonable.” 8 9 (Doc. 29 at 2 (emphasis in original)). In response, Plaintiff acknowledges her exemption 10 from the FLSA but nonetheless argues that—at the time she lodged her complaint with 11 HR—she reasonably believed that Defendant was violating the FLSA’s minimum wage 12 requirements. (Doc. 28 at 6, 9). Plaintiff argues that the Ninth Circuit’s reasonable belief 13 standard is more forgiving—that so long as a plaintiff had a “good-faith belief” that her 14 employer was violating the law, her subsequent complaint is protected from retaliation 15 even if the law was not actually violated. (Id. at 9–10). 16 The question before this Court, then, is whether Plaintiff’s exempt status necessarily 17 precludes her from meeting the reasonable belief standard. On one hand, as Defendant 18 contends, Plaintiff could not have reasonably believed that Defendant’s conduct was 19 unlawful because the FLSA explicitly permits the conduct with respect to teachers by 20 exempting them. On the other hand, it may have still been reasonable for Plaintiff to believe 21 the conduct was unlawful, especially if Plaintiff’s limited knowledge of the law is 22 accounted for in the reasonableness analysis. The question boils down to whether the Ninth 23 Circuit’s reasonable belief standard is an objective one, a subjective one, or some 24 combination of both. The Ninth Circuit has not directly addressed this question. 25 In Learned v. City of Bellevue, the Ninth Circuit acknowledged the above- 26 mentioned and well-settled principle that “[a]n employee need not establish that the 27 opposed conduct in fact violated the Act in order to establish a valid claim of retaliation.” 28 860 F.2d 928, 932 (9th Cir. 1988) (emphasis added). The holding elaborated further, 1 however, noting that the opposed conduct must still “fairly fall within the protection of 2 Title VII to sustain” a retaliation claim. Id. (emphasis added) (citing Silver v. KCA, Inc., 3 586 F.2d 138, 142 (9th Cir. 1978) and Sias, 588 F.2d at 695). In Learned, the plaintiff 4 opposed “what he believed was discrimination based upon physical and mental limitations 5 only.” Id. The Ninth Circuit found this insufficient, as Title VII only protects against 6 discrimination based upon race, color, religion, sex, or national origin. Id. The opposed 7 conduct—discrimination based on physical and mental limitations—did not “fairly fall” 8 within the ambit of Title VII and therefore Plaintiff’s complaint was not based on a 9 reasonable belief that Defendant violated Title VII. Id. 10 Approximately six years later, the Ninth Circuit reached a somewhat inconsistent 11 holding in Moyo v. Gomez, a case in which the plaintiff, Moyo, alleged he was fired for 12 refusing to discriminate against black inmates. 40 F.3d 982, 984 (9th Cir. 1994). At issue 13 was whether the inmates were “employees” protected under Title VII. Id. at 984–85. If so, 14 then Moyo engaged in a protected activity by opposing his employer’s discrimination 15 against them. Id. The Ninth Circuit reversed the lower court’s dismissal of the retaliation 16 claim for three reasons. Id. at 985. First, Moyo may have been able to amend his complaint 17 to obviate any need to determine the inmates’ employment status.3 Id. Second, the Ninth 18 Circuit found that the facts of the complaint, on their own, failed to definitively show that 19 the inmates were not “employees” under Title VII—in other words, Moyo may have still 20 been able to prove that they were employees. Id. 21 Third, and most relevant to the issue presently before this Court, the Ninth Circuit 22 found that—even if the inmates were not employees—Moyo still could have stated a 23

24 3 Specifically, Moyo could have amended his complaint to show that he was 25 discharged not for opposing his employer’s discrimination of the inmates, but rather for opposing his employer’s alleged practice of requiring him, as a condition of his 26 employment, to discriminate against the inmates. Moyo, 40 F.3d at 985. This subtle shift 27 in pleading would have rendered the determination of the inmates’ employment status “wholly irrelevant” because “requiring an employee to discriminate is itself an unlawful 28 employment practice.” Id. 1 retaliation claim “if he could show that his belief that an unlawful employment practice 2 occurred was ‘reasonable.’”4 Id. The Ninth Circuit explained that “[a]n erroneous belief 3 that an employer engaged in an unlawful employment practice is reasonable, and thus 4 actionable under [Title VII], if premised on a mistake made in good faith. A good-faith 5 mistake may be one of fact or of law.” Id. at 984. “The reasonableness of [a plaintiff’s] 6 belief that an unlawful employment practice occurred must be assessed according to an 7 objective standard—one that makes due allowance, moreover, for the limited knowledge 8 possessed by most Title VII plaintiffs about the factual and legal bases of their claims.” 9 Id. at 985. Notably, Moyo made no mention of Learned’s “fairly fall” language. In the end, 10 the Ninth Circuit reversed and remanded the case, and declined to decide whether Moyo 11 had met the reasonable belief standard. Id. 12 This Court has previously found Learned and Moyo to be inconsistent. See Maner 13 v. Dignity Health, 350 F. Supp. 3d 899, 908 (D. Ariz. 2018), aff’d, 9 F.4th 1114 (9th Cir. 14 2021). “Under Learned, complaints about conduct are not protected for purposes of a 15 retaliation claim unless the conduct ‘fairly fall[s] within the protection of Title VII.’” Id. 16 (citing Learned, 860 F.2d at 932). “Under Moyo, the conduct need not ‘fairly fall’ within 17 Title VII. It can fall outside Title VII so long as the plaintiff had limited knowledge and 18 simply made a mistake of law.” Id. (citing Moyo, 40 F.3d at 984–85). This Court chose to 19 follow Learned rather than Moyo for three specific reasons: 20 First, the Ninth Circuit has instructed that the earlier case (Learned) controls over the later inconsistent case (Moyo) 21 because the panel that decided the later case had no authority to overrule Ninth Circuit precedent. . . . Second, the 22 inconsistent statement in Moyo can be viewed as dictum because it was one of three different reasons the court gave for 23 its ruling. . . . Third, no Ninth Circuit decision has cited Moyo for the proposition that mistakes of law can support a 24 retaliation claim, while the Ninth Circuit has reiterated 25 4 This, of course, was merely a restatement of the Ninth Circuit’s reasonable belief 26 standard—the same standard set forth in prior cases like Zellerbach, Jurado, and Learned. 27 See, e.g., Zellerbach, 720 F.2d at 1013 (“[P]rotection will be accorded whenever the opposition is based on a ‘reasonable belief’ that the employer has engaged in an unlawful 28 employment practice.”). Learned’s holding that complained-of conduct must “fairly 1 fall” within Title VII to constitute protected activity for purposes of a retaliation claim. 2 3 Id. (citations omitted). In Maner, the plaintiff alleged that he was retaliated against after he 4 complained about workplace favoritism of his supervisor’s romantic partner. Id. at 904– 5 05. Applying Learned, this Court found that the plaintiff did not have a reasonable belief 6 that the employer’s conduct violated Title VII because federal courts “widely held” that 7 workplace favoritism of a romantic partner was not sex-based discrimination under Title 8 VII. Id. at 909. Had this Court applied Moyo, the result may have been different; whether 9 the alleged favoritism “fairly fell” within Title VII would have been irrelevant and the 10 plaintiff’s limited knowledge and mistake of law may have saved his retaliation claim. 11 As Defendant points out in its Reply, (Doc. 29 at 3), other courts in the Ninth Circuit 12 have applied Learned’s “fairly fall” test to the reasonable belief analysis. See Dorn-Kerri 13 v. Sw. Cancer Care, 385 Fed. Appx. 643, 644 (9th Cir. 2010) (affirming summary judgment 14 for employer on Title VII retaliation claim where plaintiff alleged retaliation for complaint 15 he made about unlawful billing practices because Title VII does not cover billing 16 practices); Sherrill v. Blank, No. CV-13-00266-TUC-RCC, 2013 WL 11312398, at *2 (D. 17 Ariz. Nov. 26, 2013) (dismissing plaintiff’s retaliation claim because her complaint to 18 employer described only “general, non-discriminatory workplace disagreements” rather 19 than conduct prohibited under Title VII); Fisk v. McHugh, No. 1:13-cv-00862-LJO-SAB, 20 2013 WL 3199061, at *3 (E.D. Cal. June 21, 2013) (plaintiff’s EEOC complaint alleging 21 disability discrimination did not allege conduct falling within Title VII because Title VII 22 does not prohibit disability discrimination); Thacker v. GPS Insight, LLC, No. CV18-0063- 23 PHX-DGC, 2019 WL 3816720, at *4 (D. Ariz. Aug. 14, 2019) (“[M]ere assertions of 24 hostility are insufficient to constitute protected activity without alleging discrimination or 25 harassment based on . . . [a] Title VII protected category.”; “[C]omplaints about conduct 26 are not protected for purposes of a retaliation claim unless the conduct ‘fairly falls within 27 the protection of Title VII.’”); Padilla v. Bechtel Const. Co., No. CV 06 286 PHX LOA, 28 2007 WL 1219737, at *6 (D. Ariz. Apr. 25, 2007) (plaintiff’s EEOC complaint alleging 1 safety violations not “protected activity” because elimination of safety violations “does not 2 ‘fairly fall within the protection of Title VII to sustain a [retaliation claim]’”). 3 Turning to the present case, the Court first pauses to acknowledge that the above 4 cases—applying Learned’s “fairly fall” test—do not perfectly analogize to the facts of this 5 case. In those cases, the plaintiffs complained about employer conduct which clearly fell 6 outside Title VII—e.g., complaints about unlawful billing practices or disability 7 discrimination. Here, in contrast, Plaintiff’s complaint concerned Defendant’s failure to 8 pay her for hours worked after school. On first glance, such a complaint would seem to fall 9 squarely within the FLSA, a statute that governs wage and hour practices. However, this 10 view fails to account for Plaintiff’s exempt status as a teacher. As noted above, teachers 11 are explicitly exempted from the wage and hour protections of the FLSA, something the 12 parties here do not dispute. The outcome thus turns on how the “fairly fall” test accounts 13 for Plaintiff’s exempt status. The parties fail to cite to, and this Court is itself unaware of, 14 any Ninth Circuit caselaw addressing this question. 15 However, the Court finds Defendant’s citations to Eleventh Circuit caselaw to be 16 helpful. For starters, the Eleventh Circuit, like the Ninth, recognizes that a plaintiff does 17 not have to prove that the employer’s alleged conduct was actually unlawful; it is enough 18 that the plaintiff reasonably believed that it was. See Rollins v. State of Fla. Dept. of Law 19 Enforcement, 868 F.2d 397, 400 (11th Cir. 1989). In other words, both Circuits adhere to 20 the reasonable belief standard. In applying the reasonable belief standard, however, the 21 Eleventh Circuit has specifically held that the standard has both a subjective and an 22 objective component. Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 23 (11th Cir. 1997). The subjective prong asks whether the plaintiff “subjectively (that is, in 24 good faith) believed that his employer was engaged in unlawful employment practices.” 25 Id. The objective prong asks whether such belief was “objectively reasonable in light of 26 the facts and record presented.” Id. 27 While the Ninth Circuit has never explicitly separated the standard into objective 28 and subjective components in this manner, caselaw suggests that the Ninth Circuit’s 1 analysis has taken both into consideration—look no further than the tensions between 2 Learned and Moyo. In Learned, the Ninth Circuit implies an objective approach by asking 3 whether the opposed conduct “fairly falls” within the protection of the statute, regardless 4 of whether the plaintiff subjectively believed it did or not. Learned, 860 F.2d at 932. In 5 Moyo, the Ninth Circuit even refers to the standard as an objective one, before cautioning 6 that the standard must also make “due allowance . . . for the limited knowledge possessed 7 by most Title VII plaintiffs about the factual and legal bases of their claims.” Moyo, 40 8 F.3d at 985; see also Strother v. S. Cal. Permanente Med. Grp., 79 F.3d 859, 869 (9th Cir. 9 1996) (suggesting subjective standard by finding instructive whether the plaintiff’s 10 complaint was “brought in bad faith or meant to harass [the defendant]”). 11 Given the similarities between the Eleventh and Ninth Circuit approaches—namely, 12 that both apply the reasonable belief standard and that both seem to assess reasonableness 13 objectively and subjectively—this Court finds the Eleventh Circuit caselaw cited by 14 Defendant to be persuasive. This is notable because courts in the Eleventh Circuit have 15 addressed the exact issue presently before this court: whether a plaintiff’s exempt status 16 under the FLSA renders unreasonable her belief that the alleged conduct was unlawful. 17 In Keith v. University of Miami, for example, the plaintiff was an adjunct professor 18 who worked part-time and was paid by the hour. 437 F. Supp. 3d 1167, 1170 (S.D. Fla. 19 2020). As a result, she was only paid for the time she spent in the classroom (and not for 20 time spent otherwise preparing for classes and for other administrative duties) and was 21 excluded from enrollment in a healthcare program. Id. The plaintiff complained and was 22 subsequently fired, which led to her filing a claim for retaliation under the FLSA. Id. at 23 1170–71. In conducting the reasonable belief analysis, the court noted that the plaintiff, as 24 a teacher, was exempted from the FLSA’s overtime provisions. Id. at 1171. As a result, the 25 court held that—even assuming the plaintiff met the subjective prong by showing that she 26 was unaware of her exempt status and that she in good faith believed that she was protected 27 under the FLSA—the plaintiff failed to meet the objective prong because of her exempt 28 status. Id. at 1172. 1 Other Eleventh Circuit cases align with Keith in holding that employees who are 2 clearly and explicitly exempted from FLSA coverage cannot successfully raise an FLSA 3 retaliation claim because they fail to meet the objective prong. See, e.g., Est. of Roig v. 4 United Parcel Serv., Inc., No. 20-CV-60811, 2020 WL 6875790, at *20–21 (S.D. Fla. Sept. 5 30, 2020) (“[T]he state of the law is not in flux with respect to [the plaintiff’s] status as an 6 exempt employee [under the FLSA]. Thus, it is not possible to satisfy the reasonable, 7 objective component, rendering [the plaintiff’s] retaliation claim impossible.”); Langston 8 v. Lookout Mountain Cmty. Servs., No. 4:16-CV-00239-HLM-WEJ, 2017 WL 6612866, at 9 *15 (N.D. Ga. Oct. 11, 2017) (“[B]ased on her many managerial duties, it is clear that 10 plaintiff was properly classified as an exempt executive. . . . Thus, even assuming plaintiff 11 subjectively believed that she was entitled to overtime compensation and made that 12 complaint to [her employer], any such belief was not objectively reasonable.”); Kaplan v. 13 Burrows, No. 6:10-cv-95-Orl-35DAB, 2011 WL 13298585, at *6 (M.D. Fla. Mar. 8, 2011) 14 (“A complainant can be wrong in his assertion of an FLSA violation but still raise an 15 objectively reasonable complaint, particularly where the claim at issue is suffused with 16 uncertainty because the state of the law is in flux or because the factual peculiarities 17 surrounding the case pose a novel legal question. This is not that sort of matter. . . . Because 18 Plaintiff was not a protected individual under the FLSA at the time he lodged his complaint 19 and could not have reasonably believed he was a protected employee and, therefore, 20 engaged in a protected activity at that time, the Court finds that Plaintiff has failed to 21 establish a prima facie case for retaliation.”).5

22 5 Plaintiff’s citation to Moakler v. Furkids, Inc., 374 F. Supp. 3d 1306, 1315–16 23 (N.D. Ga. 2019), shows that district courts in the Eleventh Circuit remain at least somewhat in conflict on the effect of FLSA exemption. In Moakler, the court held that the plaintiff 24 had an “objectively good faith reasonable belief” that her employer’s conduct was unlawful 25 despite her exempted status under the FLSA. Id. at 1316; see also Cedano v. Alexim Trading Corp., No. 11-20600-CIV, 2011 WL 5239592, at *4 (S.D. Fla. Nov. 1, 2011) 26 (“Plaintiffs’ exemption from the . . . FLSA does not preclude them from bringing a claim 27 under the retaliatory firing provision of the FLSA.”). The holding in Moakler was due, at /// 28 /// 1 Here, the Court finds that Plaintiff’s exempt status precludes her from showing that 2 she reasonably believed that Defendant’s alleged conduct was unlawful. Plaintiff’s 3 Amended Complaint pleads facts supporting that she may have honestly and in good faith 4 believed that she was entitled to be paid and that Defendant’s refusal to do so was 5 unlawful.6 However, even accepting these facts as true and construing them in Plaintiff’s 6 favor, as this Court is required to do on a motion to dismiss, the fact remains that the FLSA 7 explicitly exempts her from the wage and hour provisions. While Plaintiff was not required 8 to prove that Defendant’s conduct in fact violated the FLSA, the conduct still had to “fairly 9 fall” within the FLSA’s protection under Ninth Circuit law. Learned, 860 F.2d at 932. Just 10 as Title VII did not protect against discrimination based upon physical and mental 11 limitations in Learned, the FLSA simply does not provide minimum wage protections to 12 teachers like Plaintiff. The law is clear; Plaintiff’s status as an exempt employee under the 13 FLSA is not in flux. Therefore, the conduct Plaintiff opposed does not “fairly fall” within 14 the protection of the FLSA. See Maner, 350 F. Supp. 3d at 909 (finding that conduct did 15 not “fairly fall” within Title VII protection when state of law was clear that conduct did 16

17 least in part, to the court’s reluctance to apply Title VII caselaw to the FLSA context. 18 Moakler, 374 F. Supp. 3d at 1315–16. Plaintiff’s citations to Stewart v. VSMB, LLC, No. 1:19 cv-22593-UU, 2020 WL 19 4501937 (S.D. Fla. June 29, 2020) and Edgecomb v. Lowes Home Centers, LLC, 391 F. Supp. 3d 1145 (S.D. Fla. 2019) are easily distinguished and unpersuasive. Neither case 20 involved an argument that the plaintiffs were clearly exempted from the FLSA. Instead, 21 each involved arguments that the plaintiff’s FLSA claims failed for other reasons. These two cases merely underscore the principle that a retaliation claim does not become 22 unavailable simply because the underlying FLSA claim fails. 23 6 Specifically, Plaintiff alleges that she agreed to teach the after-school robotics class 24 with the understanding that she would be paid for it, as Principal Rantala told her that she 25 would be paid for her work once the billing code process was complete. (Doc. 21 at 7). Plaintiff alleges that the billing code process was delayed, and that she logged at least eight 26 unpaid hours of work. (Id. at 7–8). Plaintiff alleges that she believed this was an unlawful 27 wage and hour practice by Defendant, prompting her complaint to HR. (Id.). Plaintiff also alleges that the HR representative agreed that she had to be paid, further justifying her 28 belief that Defendant’s failure to do so was unlawful. (Id.). 1 not constitute Title VII discrimination). As a result, it is not possible for Plaintiff to satisfy 2 the reasonable belief standard, which in turn means that she did not engage in a protected 3 activity when she complained to Defendant. This Court finds that Plaintiff has failed to 4 state a prima facie case for FLSA retaliation, and her claim is dismissed as a result. 5 B. Due Process Claim 6 “To state a claim under the Due Process Clause, a plaintiff must first establish that 7 [she] possessed a ‘property interest’ that is deserving of constitutional protection.” 8 Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998) 9 (citing Gilbert v. Homar, 520 U.S. 924 (1997)). Here, the parties do not dispute that 10 Plaintiff—as a certified, probationary public-school teacher—had a constitutionally 11 protected property interest in her continued employment. Nor do the parties dispute what 12 this means—that is, that Plaintiff was entitled to certain due process procedures, such as 13 notice and a hearing, before her employment could be terminated. (See Doc. 25 at 5 14 (Defendant acknowledging that Plaintiff had a constitutional property interest in continued 15 employment that entitled her to certain due process rights)). 16 The parties’ dispute instead centers around whether she voluntarily resigned or was 17 constructively discharged. Defendant contends the former, and that such resignation acted 18 as a waiver of Plaintiff’s due process rights. (Id. at 5–6). Plaintiff was issued a “preliminary 19 notice of inadequacy,” which Defendant asserts did not itself terminate her employment. 20 Rather, it was the first step in commencing a “comprehensive process” that would have 21 afforded her with due process before any termination decision was made. (Id.). Defendant’s 22 argument is that Plaintiff voluntarily resigned upon receiving the Pre-Terminative 23 Discipline, in effect waiving the comprehensive process that would have afforded her with 24 due process. (Id.). Plaintiff, on the other hand, concedes that she resigned but argues that 25 her resignation amounted to a constructive discharge that resulted from an ultimatum from 26 Defendant. (Doc. 28 at 2). Plaintiff contends that she was therefore entitled to notice and a 27 hearing, neither of which she received. (Id. at 13). Plaintiff characterizes the issue of 28 whether she resigned or was constructively discharged as a factual dispute that should be 1 resolved in her favor at the motion-to-dismiss stage of the action. (Id.). 2 It is true that an employee relinquishes her due-process-protected property interests 3 by voluntarily resigning. See Knappenberger v. City of Phx., 566 F.3d 936, 942 (9th Cir. 4 2009). However, courts—including the Ninth Circuit—have recognized that a resignation 5 may be involuntary and amount to a constructive discharge, which in turn can serve as the 6 basis for a § 1983 due process claim. Id. at 941 (discussing constructive discharge and 7 holding that a “resignation may be involuntary and constitute a deprivation of property for 8 purposes of a due process claim”).7 9 In Knappenberger, the Ninth Circuit recognized two scenarios in which an 10 employee can demonstrate that she was constructively discharged: (i) resignation or 11 retirement due to intolerable or discriminatory working conditions; or (ii) resignation or 12 retirement due to coercion by the employer.8 Id. The Ninth Circuit aligned itself with other 13

14 7 See also Lauck v. Campbell Cnty., 627 F.3d 805, 813 (10th Cir. 2010) (“This is not to say that there is no such thing as a due-process constructive-discharge claim. . . . An 15 employer cannot circumvent the due-process requirements that would attend a true firing 16 by trying to compel a resignation in a manner that violates the employee’s property . . . rights.”); Buchanan v. Little Rock Sch. Dist. of Pulaski Cnty., Ark., 84 F.3d 1035, 1038 n.3 17 (8th Cir. 1996) (“[H]ad she been terminated or had her transfer amounted to a constructive 18 termination, the due process clause could have been implicated”); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 173 (4th Cir. 1988) (“If, on the other hand, [plaintiff’s] 19 ‘resignation’ was so involuntary that it amounted to a constructive discharge, it must be considered a deprivation by state action triggering the protections of the due process clause. 20 A public employer obviously cannot avoid its constitutional obligation to provide due 21 process by the simple expedient of forcing involuntary ‘resignations.’”); Fowler v. Carrollton Pub. Libr., 799 F.2d 976, 981 (5th Cir. 1986) (“Constructive discharge in a 22 procedural due process case constitutes a § 1983 claim only if it amounts to forced 23 discharge to avoid affording pretermination hearing procedures.”).

24 8 Defendant’s argument appears to only consider the first type of constructive 25 discharge—i.e., resignation or retirement due to intolerable or discriminatory working conditions. (Doc. 29 at 7 (stating a constructive discharge claim “requires a showing that 26 ‘a reasonable person in plaintiff’s position would have felt compelled to quit because of 27 intolerable and discriminatory working conditions’”)). However, as Knappenberger explains, a plaintiff can also assert a constructive discharge claim under a “coercion or 28 duress” theory. See Knappenberger, 566 F.3d at 940–42. 1 circuits, adopting a “duress or coercion” theory of constructive discharge under which “a 2 resignation may be found involuntary if, from the totality of the circumstances, it appears 3 that the employer’s conduct in requesting or obtaining the resignation effectively deprived 4 the employee of free choice in the matter.” Id. (quoting Angarita v. St. Louis Cnty., 981 5 F.2d 1537, 1544 (8th Cir. 1992)). “It is the employee’s burden to come forward with 6 sufficient evidence to demonstrate that ‘a reasonable person in [her] position would feel 7 [she] had no choice but to retire.’” Id. (citing Kalvinskas v. Cal. Inst. of Tech., 96 F.3d 8 1305, 1308 (9th Cir. 1996)). The Ninth Circuit provided several factors, none being 9 dispositive, to govern the inquiry into whether a resignation was the product of coercion: 10 In evaluating such claims of coercion, we determine voluntariness by an objective standard, rather than by the 11 employee's purely subjective evaluation; reject cases in which the employee did have a choice, even if between comparatively 12 unpleasant alternatives; and consider additional case-specific factors that cut against a finding of coercion, such as whether 13 the employee was given an alternative to resignation or retirement, understood the choice, had a reasonable time in 14 which to decide, or could select the timing of the retirement or resignation. 15 16 Id. (citing Hargray v. City of Hallandale, 57 F.3d 1560, 1568–70 (11th Cir. 1995) and 17 Angarita, 981 F.2d at 1544). 18 Here, this Court finds that Plaintiff has adequately stated a plausible Due Process 19 claim because she pleaded facts that, when taken as true and construed in her favor, 20 demonstrate (i) that a reasonable person in her position would have felt she had no choice 21 but to resign (i.e., that she was constructively discharged) and (ii) that she was denied due 22 process procedures prior to her constructive discharge. Specifically, Plaintiff alleges that 23 after she made her Wage and Hour Complaint, Rantala immediately delivered “two 24 shockingly-low performance evaluations” to Plaintiff which “eviscerated” Plaintiff’s 25 otherwise stellar teaching record and threatened her continued employment with 26 Defendant. (Doc. 21 at 9–10). The poor evaluations triggered the issuance of the Pre- 27 Terminative Discipline and its remediation plan, which subjected Plaintiff to dismissal if 28 she failed to satisfy the remediation requirements. (Id. at 10). Plaintiff alleges that she 1 began experiencing severe anxiety, stress, panic attacks, and difficulty sleeping. (Id. at 11). 2 She also alleges that she felt vulnerable, targeted, and unprotected, and that she came to 3 dread the time she spent at work. (Id.). Plaintiff wrote a letter complaining about the 4 retaliation to HR, explaining her concern for her own safety and well-being at work and 5 expressing her need for assistance. (Id.). Plaintiff alleges that this letter was entirely 6 ignored by Defendant. (Id.). Days later, Plaintiff was advised by her doctor to take a 7 medical leave of absence due to the anxiety, stress, and depression that work was causing 8 her. (Id.). While she was out on medical leave, Plaintiff alleges that Defendant imposed 9 Pre-Terminative Discipline against her and locked her out of the computer system. (Id. at 10 12–14). Finally, Plaintiff alleges that she was presented with an ultimatum that left her no 11 choice but to resign. (Id. at 14). Plaintiff alleges that she was told that she had three options 12 to avoid a finding of “contract abandonment” and “the resulting stigma and professional 13 consequences” of such a determination: 14 (i) immediately return to the un-remediated hostile work environment; 15 (ii) obtain approval for indefinite, unpaid FMLA leave; or 16 (iii) resign effective March 16, 2020 and pay Defendant $2,000 17 in liquidated damages to be released from her 2019/2020 teaching contract. 18 19 (Id.). Plaintiff alleges that her health prevented an immediate return to the un-remediated 20 hostile work environment and that she could not afford to take indefinite, unpaid leave. 21 (Id.). As a result, Plaintiff alleges she had no choice but to resign and pay the $2,000 22 penalty; doing nothing would have left Plaintiff with a “contract abandonment” designation 23 and jeopardized her chances of finding future employment as a teacher. (Id.). 24 The Court rejects Defendant’s contention that Plaintiff’s constructive discharge 25 theory was supported only by “mere conclusory assertions.” (Doc. 29 at 7). Instead, this 26 Court finds that the above facts, construed in Plaintiff’s favor, support a finding that a 27 reasonable person in Plaintiff’s position would have felt she had no choice but to resign. 28 Thus, Plaintiff has sufficiently pleaded facts to support her claim that she was 1 | constructively discharged. It follows that Plaintiff's pleading sufficiently states a Due Process claim because it is undisputed that Plaintiff never received notice or a hearing prior 3 | to her alleged constructive discharge. The Court denies Defendant’s Motion to the extent 4| it seeks to dismiss Plaintiff's Due Process claim. 5 IV. CONCLUSION 6 After taking all the material facts alleged in the Amended Complaint as true and 7 | construing them in favor of Plaintiff, the Court finds that Plaintiff has stated a plausible 8 | Due Process claim. Plaintiff has not, however, stated a plausible claim for retaliation under 9| the FLSA. 10 Accordingly, 11 IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 25) is granted in part 12| as to Plaintiff's FLSA retaliation claim and denied in part as to Plaintiff's Due Process 13 | claim. 14 Dated this 28th day of March, 2022. 15

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