Kailikole v. Palomar Cmty. Coll. Dist.

• Decision Date: 26 April 2019
• Docket Number: Case No.: 18-CV-02877-AJB-MSB
• Citation: 384 F.Supp.3d 1185
• Court: U.S. District Court — Southern District of California
• Parties: Kathryn KAILIKOLE, an individual, Plaintiff, v. PALOMAR COMMUNITY COLLEGE DISTRICT, a governmental entity ; and Does 1 through 25, inclusive, Defendants.

384 F.Supp.3d 1185

Kathryn KAILIKOLE, an individual, Plaintiff,

v.PALOMAR COMMUNITY COLLEGE DISTRICT, a governmental entity ; and Does 1 through 25, inclusive, Defendants.

Case No.: 18-CV-02877-AJB-MSB

United States District Court, S.D. California.

Signed April 26, 2019

Evan Dwin, Dwin Legal, Carlsbad, CA, for Plaintiff.

Regina A. Petty, Adam Frank Sloustcher, Kevonna Ahmad, Fisher & Phillips LLP, San Diego, CA, for Defendants.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

Hon. Anthony J. Battaglia, United States District Judge

Pending before the Court is Defendant Palomar Community College District's motion to dismiss. (Doc. No. 9.) Plaintiff filed an opposition to Defendant's motion to dismiss. (Doc. No. 11.) For the reasons set forth more fully below, the Court DENIES Defendant's motion to dismiss. Pursuant to Civil Local Rule 7.1.d.1, the Court finds the instant matter suitable for determination on the papers and without oral argument. Accordingly, the hearing date of June 20, 2019 at 2 p.m. is vacated as to this motion only.

I. BACKGROUND

Kathryn Kailikole ("Plaintiff") brings seven causes of action, under state and federal law, for retaliation and disability discrimination against her previous employer, Palomar Community College District ("Defendant"). (Doc. No. 7.) Plaintiff alleges that on December 14, 2017 she was "mysteriously and suddenly placed on paid leave." (Id. ¶ 13.) She was told she could not speak to anyone at the college and was not given information about why she was removed, other than that it involved an investigation related to a confidentiality issue. (Id. ¶ 14.) Plaintiff remained on paid leave for five months without ever being informed of the nature of the allegations. (Id. ¶ 15.)

Plaintiff's retaliation claims are rooted in her participation as a witness in an investigation against Takashi Nakajima ("Nakajima") and Arthur Gerwig ("Gerwig"), who were professors at Palomar Community College District accused of sexual harassment and race discrimination. (Id. ¶¶ 5–10.) In May 2017, Plaintiff received a report from a faculty member about their racist and sexually harassing conduct, and reported the incident to Shawna Cohen, the District's Manager of the Equal Opportunity and Compliance Office and a Deputy Title IX Coordinator. (Id. ¶ 6.) On November 1, 2017, an investigator for the school district concluded that Plaintiff was credible, and Nakajima and Gerwig were guilty of violating the College's anti-harassment policies. (Id. ¶ 9.) No action was taken against these professors. (Id. ¶ 10.) Plaintiff inquired and discussed with other faculty in November 2017 as to why action was not being taken. (Id. ) On December 12, 2017, the District placed Nakjima and Gerwig on one month of unpaid leave. (Id. ¶ 12.) Plaintiff was subsequently placed on paid leave on December 14, 2017. (Id. ¶ 13.) Plaintiff alleges that her computer was searched, without her consent, to acquire evidence that would discredit her report of Nakajima's and Gerwig's racist and sexually harassing conduct. (Id. ¶ 19.) Through this search, an email dated December 8, 2017 was obtained. (Id. ) This email contained a forwarded message from the Plaintiff to another faculty member about an incident involving Nakajima and Gerwig. (Id. ) The faculty member then forwarded the email to his wife. (Id. ¶¶ 20–22.) Based on this conduct, the District investigator concluded that Plaintiff was part of a conspiracy to leak confidential information about Nakajima and Gerwig outside the College. (Id. )

Plaintiff's disability claims are rooted in her informing the Defendant of her disability and her subsequent termination. (Id. ¶¶ 2, 11, 14.) On May 5, 2017, Plaintiff alleges that she needed to leave a meeting because she believed she was having a heart attack

. (Id. ¶ 4.) Plaintiff was instead having a panic attack and was later diagnosed with anxiety. (Id. ) She suffers from feelings of being overwhelmed, helplessness, and nervousness. (Id. ) She also has panic attacks and suffers from vertigo and cysts. (Id. ) The effects of her anxiety affect her daily activities. (Id. ) Plaintiff informed Dr. Jack Kahn, the Vice-President of Instruction, that she suffered from anxiety in May 2017. (Id. ) Plaintiff later met with Dr. Kahn on December 4, 2017 and discussed her anxiety with him. (Id. ¶ 11.) Dr. Kahn "assured Plaintiff that she was an ‘incredibly valuable member of the team’ and that he was dedicated to providing her with his ‘complete support.’ " (Id. ) Less than two weeks after this meeting, Plaintiff was put on paid leave. (Id. ¶ 13.)

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff's complaint. See Navarro v. Block , 250 F.3d 729, 732 (9th Cir. 2001). "[A] court may dismiss a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient facts under a cognizable legal claim."

SmileCare Dental Grp. v. Delta Dental Plan of Cal. , 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint will survive a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In making this determination, a court reviews the contents of the complaint, accepting all factual allegations as true and drawing all reasonable inferences in favor of the nonmoving party. See Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S. , 497 F.3d 972, 975 (9th Cir. 2007). Notwithstanding this deference, a reviewing court need not accept legal conclusions as true. See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). It is also improper for a court to assume "the [plaintiff] can prove facts that [he or she] has not alleged." Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters , 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). However, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal , 556 U.S. at 664, 129 S.Ct. 1937.

III. DISCUSSION

A. Request for Judicial Notice

As a threshold issue, the Court will first turn to Defendant's request for judicial notice. Pursuant to Rule 201, a court may take judicial notice of adjudicative facts "not subject to reasonable dispute." Fed. R. Evid. 201(b). Facts are indisputable, and thus subject to judicial notice, only if they are either "generally known" under Rule 201(b)(1) or "capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned" under Rule 201(b)(2). Id. If the parties dispute the facts contained in the documents, "the Court takes judicial notice only of the statements contained," but not for the truth of the matters asserted. Shenwick v. Twitter, Inc. , 282 F. Supp. 3d 1115, 1122 (N.D. Cal. 2017) (citations omitted); see also City of Roseville Employees' Ret. Sys. v. Sterling Fin. Corp. , 963 F. Supp. 2d 1092, 1108 (E.D. Wash. 2013), aff'd , 691 F. App'x 393 (9th Cir. 2017) (court found it unnecessary to consider the truthfulness of judicially noticeable documents in a defendant's motion to dismiss).

Defendant's motion requests judicial notice of the following documents: Notice of Proposed Discharge (Exhibit A), the Governing Board Regular Meeting Agenda for June 12, 2018 (Exhibit B), the June 11, 2018 24-Hour Notice Pursuant to Government Code section 54957 (Exhibit C), the Governing Board Minutes for the June 12, 2018 Meeting of the Governing Board (Exhibit D), and the Notice of Termination (Exhibit E). (Doc. No. 9-3.) Plaintiff argues that the documents contain assertions that are subject to dispute and are being offered for the truth of the matter asserted. (Doc. No. 11 at 9.) The Court agrees. Defendant requests judicial notice of exhibits that contain assertions that are disputed and are not generally known or capable of accurate and ready determination. As such, the Court finds the documents are purported evidence of Plaintiff's performance issues and thus, are subject to reasonable dispute. Accordingly, the Court DENIES Defendant's request for judicial notice.

B. Plaintiff Participated in a Protected Activity and then Faced Retaliation by her Employer

A plaintiff establishes a prima facie case of retaliation by showing "that: 1) [s]he engaged in a protected activity; 2) [s]he [subsequently] suffered an adverse employment decision; and 3) there was a causal link between the protected activity and the adverse employment decision." Villiarimo v. Aloha Island Air, Inc. , 281 F.3d 1054, 1064 (9th Cir. 2002). "Protected activity includes the filing of a charge or a complaint, or providing testimony regarding an employer's alleged unlawful practices, as well as engaging in other activity intended to ‘oppose[ ]’ an employer's discriminatory practices." Raad v. Fairbanks N. Star Borough , 323 F.3d 1185, 1197 (9th Cir. 2003) (quoting 42 U.S.C. § 2000e-3(a) ). "[P]roximity in time between the protected action and the allegedly retaliatory employment decision" can create an inference that the employer's actions were caused by an employee's engagement in protected activities. Id. (internal quotations and citations omitted). "[T]he plaintiff must also make some showing sufficient for a reasonable trier of fact to infer that the defendant was aware that the plaintiff had engaged in protected activity." Id.

The Defendant alleges that under the "manager rule," Plaintiff is unable to bring a claim of retaliation because her formal job duties and tasks included reporting harassment and discrimination. An employer cannot restrict employees' rights by creating excessively broad job descriptions. Garcetti v. Ceballos , 547 U.S. 410, 424, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). "Formal job descriptions often bear little resemblance to the duties an employee" is expected to perform. Id....