Steshenko v. Gayrard

• Decision Date: 29 September 2014
• Docket Number: Case No.: 13–CV–03400–LHK
• Parties: Gregory Nicholas Steshenko, Plaintiff, v. Suzanne Gayrard, et al., Defendants.
• Court: U.S. District Court — Northern District of California

70 F.Supp.3d 979

Gregory Nicholas Steshenko, Plaintiff

v.Suzanne Gayrard, et al., Defendants.

Case No.: 13–CV–03400–LHK

United States District Court, N.D. California, San Jose Division.

Signed September 29, 2014

Gregory Nicholas Steshenko, Aptos, CA, pro se.

Jeffrey Richard Vincent, Office of the Attorney General, Rohit Kodical, Rohit Kodical, California State Attorney General's Office, Oakland, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

LUCY H. KOH, United States District Judge

Plaintiff Gregory Nicholas Steshenko (“Plaintiff”) brings this action for age discrimination and retaliation based on not being admitted to three graduate programs at San Jose State University. Defendants Suzanne Gayrard, Tzvina Abramson, and the Board of Trustees of the California State University (collectively, “Defendants”) move to dismiss Plaintiff's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 46. Having considered the parties' briefs and arguments, the relevant law, and the record in this case, the Court hereby GRANTS Defendants' motion to dismiss.

I. BACKGROUND

Plaintiff is a 52–year-old unemployed electrical engineer seeking to re-enter the job market through professional re-training. FAC ¶ 5 1. In addition to a Master of Science degree in Electrical Engineering, Plaintiff earned a Bachelor of Science degree in Biochemistry and Molecular Biology from the University of California, Santa Cruz, in 2010. See id.

On November 23, 2012, Plaintiff applied to the Clinical Laboratory Scientist (“CLS”) Training Program at San Jose State University. Id. ¶ 57. The CLS Training Program is a one-year academic program combining theoretical training with an internship at a participating clinical laboratory. Id. ¶ 52. On January 25, 2013, Plaintiff was notified that his application was denied and that he would not be invited for an interview. Id. ¶ 59. According to Plaintiff, much younger applicants, in their 20s, with much more inferior academic credentials and work experience, were invited for interviews and subsequently admitted to the program. Id. Plaintiff alleges that he personally knew some of these applicants and observed how they “struggled” while taking the prerequisites for the program. Id. Plaintiff later raised these issues with the head of the CLS Training Program, Defendant Suzanne Gayrard. Id. However, Gayrard refused to explain the admission decision or to inform Plaintiff about the age statistics of the admitted applicants. Id. Accordingly, Plaintiff concluded that he was discriminated against on the grounds of age. Id. Plaintiff subsequently filed a complaint with the U.S. Department of Education Office of Civil Rights (“USDOE”). Id. ¶ 60.

On February 3, 2013, Defendant Tzvia Abramson, the head of the Stem Cell Internships in Laboratory Based Learning (“SCILL”) Program, invited Plaintiff to apply to the SCILL Program. Id. ¶ 61. The SCILL Program is a two-year Master of Science program with a year of theoretical training and a year of an internship at a participating research laboratory. Id. ¶ 53. On February 28, 2013, Plaintiff applied to the SCILL Program. Id. ¶ 61.

According to Plaintiff, after Abramson contacted Gayrard and learned about Plaintiff's complaint to the USDOE, Defendants Abramson, Gayrard, and other university employees¹ formed a conspiracy to retaliate against Plaintiff for his complaint. Specifically, the defendants “communicated and agreed that Plaintiff should not be invited for the SCILL admissions interview because of his complaints and his expressed intention to sue.”Id. ¶ 62. On May 3, 2013, Abramson notified Plaintiff that he was not selected as “a finalist for this round,” but that Plaintiff was on a waiting list for Fall 2013. Id. ¶ 63. Abramson also stated that she would not provide any information about Plaintiff's ranking on that waiting list. Id. However, according to Plaintiff, there was no such thing as a waiting list and the SCILL Program had been “struggling to find ... minimally qualified students willing to apply.” Id. Plaintiff alleges that all of the admitted applicants to the SCILL Program were young, and “their academic credentials were much inferior to those of Plaintiff.” Id.

On June 10, 2013, Plaintiff notified Gayrard that Plaintiff would file a lawsuit against Gayrard. Id. ¶ 64. According to Plaintiff, “Defendants decided to retaliate further” by denying Plaintiff's admission to graduate studies at San Jose State University's Department of Biological Sciences. Id.

Plaintiff alleges that the CLS Training Program, the SCILL Program, and the participating laboratories “heavily discriminate on the grounds of age.” Id. ¶ 56. Plaintiff further alleges: “No persons of the protected age have ever been admitted to either of [the CLS Training or the SCILL] programs. The age discrimination is rampant.” Id.

Plaintiff alleges that he exhausted his administrative remedies with the USDOE on June 29, 2013. Id. ¶ 7. Plaintiff also alleges that he filed “several timely administrative claims with California State University Chancellor's Office.” ECF No. 46 at 3. However, Plaintiff's claims were denied. Id. ¶ 8.

On July 22, 2013, Plaintiff filed his original Complaint against Defendants. ECF No. 1. On October 22, 2013, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6). ECF No. 12. After the Court granted the parties' motions to extend time to file a response to the motion to dismiss, on January 23, 2014, Plaintiff filed an Opposition. ECF No. 26. On January 24, 2014, Plaintiff filed an addendum to his Opposition. ECF No. 28. On January 31, 2014, Defendants filed a Reply. ECF No. 29. The Court held a hearing on May 15, 2014. ECF No. 36. Plaintiff filed a supplemental letter brief on May 16, 2014. ECF No. 35.

On May 20, 2014, the Court granted Defendants' motion to dismiss. (“May 20, 2014 Order”), ECF No. 42. In the order, the Court granted Defendants' motion to dismiss Plaintiff's claims against the Board of Trustees; Plaintiff's § 1983 retaliation claim against Gayrard and Abramson; and Plaintiff's § 1985(3) claim against Gayrard and Abramson with leave to amend. May 20, 2014 Order at 20. The Court also granted Defendants' motion to dismiss Plaintiff's § 1983 claim based on due process and equal protection violations against Gayrard and Abramson; Plaintiff's Age Discrimination Act claim against Gayrard and Abramson; and Plaintiff's Age Discrimination in Employment Act claim against Gayrard and Abramson with prejudice. Id. Finally, the Court declined to exercise supplemental jurisdiction over Plaintiff's remaining state law claims and thus granted Defendants' motion to dismiss Plaintiff's state law claims—FEHA claim, Bane Act claims, and IIED claim. Id. at 18–20.

On May 31, 2014, Plaintiff filed a First Amended Complaint (“FAC”) against Defendants. ECF No. 45. On June 1, 2014, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6). (“MTD”), ECF No. 49. On June 29, 2014, Plaintiff filed a Response. ECF No. 51. On July 10, 2014, Defendants filed a Reply. ECF No. 53.

II. LEGAL STANDARD

A. Motion to Dismiss Under Rule 12(b)(6)

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). The Supreme Court has held that Rule 8(a) requires a plaintiff to plead “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). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, a court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008). Moreover, pro se pleadings are to be construed liberally. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000) (“[I]n general, courts must construe pro se pleadings liberally.”).

However, a court need not accept as true allegations contradicted by judicially noticeable facts, Shwarz v. United States, 234 F.3d 428, 435 (9th Cir.2000), and the “[C]ourt may look beyond the plaintiff's complaint to matters of public record” without converting the Rule 12(b)(6) motion into one for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir.1995). Nor is the court required to “ ‘assume the truth of legal conclusions merely because they are cast in the form of factual allegations.’ ” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir.2011) (per curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981) ). Mere “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004) ; accord Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Furthermore, “a plaintiff may plead herself out of court” if she “plead[s] facts which establish that [s]he cannot prevail on h[er] ... claim.” Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n. 1 (9th Cir.1997) (internal quotation marks omitted).

B. Leave to Amend

If the Court determines that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “should be freely granted when justice so requires,” bearing in mind that “the underlying purpose...