DeFrancesco v. Arizona Board of Regents

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Anthony T DeFrancesco, No. CV-20-00011-TUC-CKJ 10 Plaintiff, ORDER 11 v. 12 Arizona Board of Regents, et al., 13 Defendants. [15] 16 Before the Court is Defendants’ Motion to Dismiss First Amended Complaint. 17 (Doc. 35) For the reasons that follow, Defendants’ Motion is granted, and Plaintiff’s equal 18 protection and Title VII disparate treatment claims are dismissed. 19 BACKGROUND1 20 In June 2019, Plaintiff Anthony DeFrancesco was terminated from his position as 21 Senior Director of Operations at the University of Arizona Health Sciences (“UAHS”). 22 UAHS is part of the University of Arizona, and Plaintiff had been employed at the 23 University for approximately four-and-one-half years before he was let go. Plaintiff’s 24 supervisor at the time of his termination was Dr. Michael Dake. Dr. Dake held the title of 25 Senior Vice President, and it is Plaintiff’s contention that Dr. Dake harassed, discriminated 26 against, and ultimately terminated him because of his sexual orientation. [27] 1 The information in this section is taken from Plaintiff’s First Amended Complaint. (Doc. 28 32) In analyzing Defendants’ Motion to Dismiss, the Court takes all allegations of material fact as true and construes them in the light most favorable to Plaintiff. 1 PROCEDURAL HISTORY 2 On August 12, 2020, the Court issued an Order granting in part and denying in part 3 Defendants’ first Motion to Dismiss Complaint. (Doc. 31) The Order dismissed with 4 prejudice Plaintiff’s First Amendment retaliation and freedom of association claims and 5 dismissed without prejudice Plaintiff’s equal protection and Title VII disparate treatment 6 claims. Id. On September 11, 2020, Plaintiff filed his First Amended Complaint (“FAC”). 7 (Doc. 32) On October 16, 2020, Defendants filed their Motion to Dismiss First Amended 8 Complaint. (Doc. 35) On November 20, 2020, Plaintiff filed his Opposition to 9 Defendants’ Motion to Dismiss First Amended Complaint (Doc. 39); and on 10 December 18, 2020, Defendants filed their Reply in Support of Motion to Dismiss First 11 Amended Complaint. (Doc. 42) This Order follows. 12 LEGAL STANDARD 13 Under Federal Rule of Civil Procedure 12(b)(6), a defendant can move for dismissal 14 of a complaint for failure to state a claim upon which relief can be granted. Dismissal is 15 appropriate when the complaint fails to provide “sufficient factual matter, accepted as true, 16 to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662 , 678 17 (2009) (quotation marks and citation omitted). “A claim has facial plausibility when the 18 plaintiff pleads factual content that allows the court to draw the reasonable inference that 19 the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not 20 akin to a probability requirement, but it asks for more than a sheer possibility that a 21 defendant has acted unlawfully.” Id. (quotation marks and citation omitted). 22 “In assessing whether a party has stated a claim upon which relief can be granted, a 23 court must take all allegations of material fact as true and construe them in the light most 24 favorable to the nonmoving party; but conclusory allegations of law and unwarranted 25 inferences are insufficient to avoid a Rule 12(b)(6) dismissal.” Turner v. City and Cnty. of 26 San Francisco, 788 F.3d 1206, 1210 (9th Cir. 2015) (quotation marks and citation omitted). 27 Not only must a complaint “contain sufficient allegations of underlying facts to give fair 28 notice and to enable the opposing party to defend itself effectively[,]” its “factual 1 allegations . . . must plausibly suggest an entitlement to relief such that it is not unfair to 2 require the opposing party to be subjected to the expense of discovery and continued 3 litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 4 “[W]hile the court assumes that the facts in a complaint are true, it is not required 5 to indulge unwarranted inferences in order to save a complaint from dismissal.” Metzler 6 Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1064-65 (9th Cir. 2008). 7 Furthermore, a plaintiff may plead himself out of court if he pleads facts which establish 8 that he cannot prevail on his claim. Weisbuch v. Cnty. of L.A., 119 F.3d 778 , 783 n.1 9 (9th Cir. 1997). “If a defective complaint can be cured, a plaintiff is entitled to amend the 10 complaint before the action is dismissed.” Sheets v. City of Winslow, No. CV-19-0818711 PCT-JJT, 2020 WL 4514947 , at *7 (D. Ariz. Mar. 6, 2020) (citing Lopez v. Smith, 203 F.3d 12 1122, 1130 (9th Cir. 2000)). However, “failure to supply new facts within an amended 13 complaint supports a denial of further leave to amend.” Bhagat v. City of Santa Ana, 58 F. 14 App'x 332, 334 (9th Cir. 2003) (citation omitted). “[I]t [is] not an abuse of discretion for 15 [a] district court to dismiss without leave to amend” when a plaintiff “offer[s] only a new 16 theory and no satisfactory explanation for his failure to fully develop his contentions 17 originally.” Vincent v. Trend W. Tech. Corp., 828 F.2d 563, 571 (9th Cir. 1987) (quotation 18 marks and citation omitted). 19 DISCUSSION 20 Defendants request that the Court dismiss Plaintiff’s FAC arguing that Plaintiff has 21 failed to cure the deficiencies in his original complaint and that he relies on unsubstantiated 22 stereotypes as opposed to well-pleaded facts to establish his claims. (Doc. 35 at 2) Plaintiff 23 argues that his termination from UAHS cannot be explained by legitimate, non24 discriminatory reasons and that his FAC plausibly alleges that he was discriminated against 25 because of his sexual orientation when he was terminated from his job. (Doc. 39 at 5) The 26 issue for the Court to decide is whether Plaintiff sufficiently pleaded plausible causes of 27 action for violations of the Equal Protection Clause and Title VII of the Civil Rights Act 28 of 1964 and should be allowed to proceed with his claims. The Court finds that Plaintiff, 1 once again, fails to provide sufficient factual matter, accepted as true, to state claims to 2 relief that are plausible on their face. See Iqbal, 556 U.S. at 678 . Plaintiff also fails to 3 provide other sufficient factual information to allow the Court to draw the reasonable 4 inference that he was intentionally discriminated against because of his sexual orientation. 5 As such, Plaintiff’s equal protection and Title VII disparate treatment claims are dismissed. 6 I. Equal Protection Claim 7 “The purpose of the equal protection clause of the Fourteenth Amendment is to 8 secure every person within the state's jurisdiction against intentional and arbitrary 9 discrimination, whether occasioned by express terms of a statute or by its improper 10 execution through duly constituted agents.” Vill. of Willowbrook v. Olech, 528 U.S. 562 , 11 564 (2000) (quotation marks and citation omitted). “The Equal Protection Clause is 12 essentially a direction that all persons similarly situated should be treated alike.” Roe by 13 & through Slagle v. Grossmont Union High Sch. Dist., 443 F. Supp. 3d 1162 , 1168 14 (S.D. Cal. 2020) (quotation marks and citation omitted). “To state a claim . . . for a 15 violation of the Equal Protection Clause . . . a plaintiff must show that the defendants acted 16 with an intent or purpose to discriminate against [him] based upon membership in a 17 protected class.” Spears v. Arizona Bd. of Regents, 372 F. Supp. 3d 893, 917 (D. Ariz. 18 2019) (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). 19 “[C]laims based on Equal Protection violations must plead intentional unlawful 20 discrimination or allege facts that are at least susceptible of an inference of discriminatory 21 intent.” Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022 , 1026 (9th Cir. 1998). 22 To show discriminatory intent, a plaintiff must establish that “the decision-maker . . . 23 selected or reaffirmed a particular course of action[,] at least in part[,] because of, not 24 merely in spite of, its adverse effects upon an identifiable group.” Rosenbaum v. City & 25 Cnty. of San Francisco, 484 F.3d 1142 , 1153 (9th Cir. 2007) (cleaned up). A plaintiff is a 26 member of an identifiable class, for equal protection purposes, when he alleges 27 discrimination on the basis of sexual orientation. Flores v. Morgan Hill Unified Sch. Dist., [28] 324 F.3d 1130 , 1134-35 (9th Cir. 2003). 1 Plaintiff’s FAC is long on rhetoric but short on substance. Plaintiff alleges that: he 2 earned a stellar employment record and failed to receive a single complaint during his 3 tenure (Doc. 32, ¶ 21 at 4-5); he requested promotions and pay increases commensurate 4 with his actual job responsibilities, id., ¶ 22 at 5; Dr. Dake is a heterosexual male who 5 chose to specialize in one of the most male-dominated medical specialties with a reputation 6 for a jock/frat culture, id., ¶ 26 at 5; Dr. Dake holds biases in favor of masculine, 7 heterosexual males as ideal candidates for traditionally male-dominated fields, such as 8 finance, id., ¶ 27 at 5; Dr. Dake learned that Plaintiff is married to a man, who at the time, 9 was Senior Vice President and the Chief Financial Officer for the University, id., ¶ 28 at 10 6; shortly after commencing his employment, Dr. Dake told Plaintiff that he was fired and 11 that he had to reapply for his job, id., ¶ 29 at 6; Dr. Dake subjected Plaintiff to targeting 12 and harassment, id., ¶ 30 at 6; Dr. Dake told Plaintiff at a meeting that he intended to keep 13 the Associate Vice President (“AVP”) of Finance and Administration position open and 14 continue to search for a replacement, id., ¶ 33 at 6; approximately two months after joining 15 the University, Plaintiff had assumed the AVP’s duties and responsibilities, in addition to 16 his own, because the AVP resigned, id., ¶ 16 at 4; Dr. Dake stated that he was looking for 17 someone who was “strategic” and a “broad thinker” to fill the AVP position, id., ¶ 34 at 18 6; Dr. Dake told Plaintiff that he had “a decision to make” now that Plaintiff’s husband had 19 left the University, id., ¶ 35 at 6-7; when Plaintiff refused to resign, Dr. Dake orchestrated 20 a campaign of harassment to make Plaintiff’s life miserable, including undermining 21 Plaintiff in the presence of Plaintiff’s subordinates and emailing and speaking with 22 Plaintiff’s direct reports without informing Plaintiff, id., ¶ 37 at 7; there was no bona fide 23 reason for Dr. Dake’s conduct, as Plaintiff had a stellar employment record and consistent 24 level of success his entire tenure, id., ¶ 39 at 7; Dr. Dake’s conduct was intentionally 25 targeted to cause Plaintiff emotional and psychological harm such that Plaintiff would 26 leave the University, id.; Dr. Dake formally terminated Plaintiff effective June 30, 2019, 27 id., ¶ 41 at 7; Plaintiff was the only homosexual male at his level of seniority at UAHS who 28 was terminated at that time, id.; there were many heterosexual males at his level of seniority 1 at UAHS, at that time, but they were permitted to keep their jobs, id.; the University hired 2 a heterosexual male as the AVP for Finance and Administration after Plaintiff was 3 terminated, id., ¶ 43 at 8; the hiring of a heterosexual AVP shows that Dr. Dake’s comments 4 were mere pretext for discrimination, id., ¶ 44 at 8; Dr. Dake refused to allow Plaintiff to 5 work from home after Plaintiff was notified of his termination, id., ¶ 45 at 8. 6 The Court declines to accept as true Plaintiff’s allegations that are merely 7 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. 8 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). This leaves contentions that 9 lack facial plausibility of an equal protection violation and which invite the Court to draw 10 the reasonable inference that only a sheer possibility exists that Dr. Dake acted in a 11 discriminatory and unlawful manner when he terminated Plaintiff. See Iqbal, 556 U.S. at 12 678. The Court credits Defendants argument that “Plaintiff continues to rely on the classic 13 false syllogism that fails to support an inference of discrimination: I am (fill in the protected 14 class of which the plaintiff is a member); something bad happened to me . . . ; therefore the 15 bad thing happened because I am (fill in the protected class),” as it sufficiently addresses 16 the plausible allegations with which the Court is left. See Doc. 36 at 8. 17 Plaintiff also fails to establish that Dr. Dake terminated him because of its adverse 18 effects upon homosexuals. The facts that the Court reasonably gleans from the FAC is that 19 Plaintiff was doing a good job and requested a pay raise and the addition of the AVP role 20 to his current title; he was denied both the raise and the AVP title; Dr. Dake made vague 21 comments, unrelated to Plaintiff’s sexual orientation, about wanting to hire another 22 candidate based on certain qualities and characteristics; Plaintiff was terminated; after 23 Plaintiff was terminated, Dr. Dake hired a heterosexual man to fill the AVP role. There 24 are numerous reasonable inferences that the Court can draw these facts. That Dr. Dake 25 harassed and terminated Plaintiff because of Plaintiff’s sexual orientation is not one of 26 them. Accordingly, Plaintiff’s equal protection claim is dismissed. 27 II. Title VII Disparate Treatment Claim 28 Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to 1 the Act to discriminate on the basis of a person’s “race, color, religion, sex, or national 2 origin[.]” 42 U.S.C. § 2000e-2(a)(1). “The Supreme Court and the lower courts have 3 interpreted this language as giving rise to at least three types of sex discrimination 4 claims: disparate treatment (adverse employment actions motivated by sex); quid pro quo 5 sexual harassment (conditioning employment benefits on submission to sexual advances); 6 and hostile work environment harassment (unwelcome sexual advances so severe as to alter 7 the terms and conditions of employment). Maner v. Dignity Health, No. 18-17159, 2021 8 WL 3699780 , at *4 (9th Cir. Aug. 20, 2021). 9 In Wood v. City of San Diego, the Ninth Circuit discussed the relevant pleading 10 criteria for disparate treatment claims under Title VII. 678 F.3d 1075 (9th Cir. 2012). It 11 observed: [12] Disparate treatment occurs where an employer has treated a particular person 13 less favorably than others because of a protected trait. A disparate-treatment plaintiff must establish that the defendant had a discriminatory intent or [14] motive for taking a job-related action. A discriminatory motive may be 15 established by the employer's informal decisionmaking or a formal, facially discriminatory policy, but liability depends on whether the protected trait . . . [16] actually motivated the employer's decision. It is insufficient for a plaintiff 17 alleging discrimination under the disparate treatment theory to show the employer was merely aware of the adverse consequences the policy would [18] have on a protected group. [19] 20 Wood, 678 F.3d at 1081 (quotation marks and citation omitted). 21 In Bostock v. Clayton County, Georgia, the Supreme Court held that Title VII 22 prohibits discrimination based on sexual orientation, as “discrimination based on 23 homosexuality . . . necessarily entails discrimination based on sex[.]” 140 S. Ct. 1731 , 24 1746-47 (2020). Therefore, to state a Title VII disparate treatment claim based on sexual 25 orientation, a plaintiff “must state sufficient facts to show that (1) he is a member of a 26 protected class; (2) he was qualified for his position; (3) he experienced an adverse 27 employment action; and (4) similarly situated individuals outside his protected class were 28 treated more favorably, or other circumstances surrounding the adverse employment action 1 give rise to an inference of discrimination.” Sheets v. City of Winslow, No. CV-19-081872 PCT-JJT, 2020 WL 4514947 , at *2 (D. Ariz. Mar. 6, 2020) (quotation marks and citations 3 omitted). 4 Defendants argue that Plaintiff failed to satisfy the fourth prong of the disparate 5 treatment standard by failing to identify similarly situated individuals who were treated 6 more favorably than him. (Doc. 35 at 6-9) The Court agrees. “When utilizing the similarly 7 situated framework, [a plaintiff] must show that he and the individuals outside his protected 8 class [were] similarly situated in all material respects.” Sheets, 2020 WL 4514947 , at *4 9 (quotation marks and citation omitted). “[I]ndividuals are similarly situated when they 10 have similar jobs and display similar conduct.” Vasquez v. Cty. of Los Angeles, 349 F.3d 11 634, 641 (9th Cir. 2003), as amended (Jan. 2, 2004). “The employees’ roles need not be 12 identical[,]” but they must “be similar in all material respects.” Hawn v. Exec. Jet Mgmt., 13 Inc., 615 F.3d 1151, 1157 (9th Cir. 2010) (quotation marks and citation omitted). 14 “Although material characteristics vary from case to case, in termination and discipline 15 cases, the Ninth Circuit looks to factors such as whether the proposed comparator and the 16 plaintiff were subject to the same policies, worked at the same jobs, . . . and had similar 17 disciplinary records.” McDaniels v. Grp. Health Co-op., 57 F. Supp. 3d 1300, 1311 (W.D. 18 Wash. 20104 ). 19 Here, Plaintiff fails to allege sufficient factual information demonstrating that he 20 and individuals outside of his protected class were similarly situated in all material 21 respects. Plaintiff vaguely contends that “there were . . . many heterosexual males at his 22 level of seniority in UAHS at the time, but they were permitted to keep their jobs.” (Doc. 23 32 at 7) This allegation fails to contain sufficient factual material to demonstrate that 24 Plaintiff’s comparators were similarly situated and that he is entitled to proceed on his 25 disparate treatment claim. 26 Plaintiff also fails to allege that his comparators engaged in conduct similar to his. 27 See generally, Doc. 32. For example, Plaintiff fails to contend that his comparators 28 repeatedly asked for salary increases and job titles in addition to ones they already 1 possessed. Plaintiff also fails to indicate how long his comparators served in their 2 respective positions or that their positions required similar levels of responsibility. Courts 3 have determined that the lack of this type of information is insufficient to survive the 4 similarly situated prong of Title VII discrimination claims. See Vasquez, 349 F.3d at 641 5 (finding that plaintiff and his comparators were not similarly situated when they failed to 6 hold the same level of position); Sheets, 2020 WL 4514947 , at *4 (finding that the plaintiff 7 failed to plead facts showing similarly situated comparators when he and his comparator 8 were not in the same position); Frisby v. Town of Mammoth, No. CV-16-02599-PHX-ROS, [9] 2018 WL 4207989 , at *6 (D. Ariz. Sept. 4, 2018) (finding that the “[p]laintiffs’ alleged 10 facts simply suggest[ed] [p]laintiffs belonged to one race, were terminated at the direction 11 of someone who happened to be of another race, and that some unknown employees, 12 employed in unknown positions somewhere within the Town . . . , reporting to unknown 13 supervisors, and with unknown connections to [the defendant] or to [p]laintiffs, who were 14 not of [p]laintiffs race, were not also terminated”). Without an adequate identification of 15 similarly situated comparators, Plaintiff’s disparate treatment claim fails. 16 In addition to failing to allege facts showing that he and his comparators were 17 similarly situated in all material respects, Plaintiff fails to plausibly allege “other 18 circumstances surrounding his termination which give rise to an inference of 19 discrimination.” See Sheets, 2020 WL 4514947 , at *2. Plaintiff only provides conclusory 20 allegations, unwarranted deductions of fact, or unreasonable inferences to prove his theory 21 of sexual orientation discrimination (e.g., the conclusory allegation that Dr. Dake is a 22 heterosexual male who chose to specialize in one of the most male-dominated medical 23 specialties with a reputation for a jock/frat culture; the unreasonable inference that Dr. 24 Dake holds biases in favor of masculine, heterosexual males as ideal candidates for 25 traditionally male-dominated fields, such as finance, the unwarranted deduction of fact that 26 since Dr. Dake hired a heterosexual candidate for the role of AVP, he must have fired 27 Plaintiff, acting in a separate role, because he is homosexual; the unwarranted deduction 28 of fact that because Plaintiff was fired and is homosexual and no one else was terminated 1 at the time, the reason for Plaintiff’s termination must be his sexual orientation; and other 2 inconsequential ancillary facts surrounding his alleged harassment and termination). Such 3 flawed allegations fail to allow the Court to draw the reasonable inference that Plaintiff’s 4 termination was intentionally motivated by his sexual orientation. Accordingly, Plaintiff’s 5 Title VII disparate treatment claim fails, and his claim is dismissed. 6 III. Dismissal With Prejudice 7 On August 12, 2020, this Court entered an Order dismissing Plaintiff’s First 8 Amendment retaliation and freedom of association claims with prejudice and his equal 9 protection and Title VII claims without prejudice. (Doc. 31 at 16) As it concerned his 10 equal protection claim, the Order stated that Plaintiff failed to outline allegations that 11 plausibly demonstrated that Defendants acted with discriminatory intent when they 12 terminated him from his position at UAHS. Id. at 12. It also observed that Plaintiff failed 13 to allege sufficient facts from which the Court could reasonably infer that he was 14 terminated because of his sexual orientation. Id. The Court granted Plaintiff leave to allege 15 facts which would demonstrate that the disparate treatment he suffered was intentional.” 16 Id. at 13. 17 As it concerned his disparate treatment claim, the Court ruled that Plaintiff failed to 18 provide sufficient allegations for it to draw the reasonable inference that he was terminated 19 because of his sexual orientation. Id. at 15. The Court reasoned that Plaintiff only provided 20 conclusory allegations that his sexuality was a motivating factor for his termination; and 21 that he failed to reference any similarly situated group or individual that was treated more 22 favorably. Id. The Court concluded that Plaintiff’s attempt to draw out qualified 23 comparators fell far short of the Iqbal pleading standards. Id. Plaintiff was granted leave 24 to amend his complaint to submit other facts upon which he could state a Title VII claim. 25 Id. 26 Despite the Court’s advice, there is little substantive difference between Plaintiff’s 27 original and first amended complaints. Compare Docs. 1, 32. The allegations Plaintiff has 28 added fail to contain sufficient factual content for the FAC to be plausible on its face. See, 1 e.g., Doc. 32, ¶¶ 41, 43-44 at 7-8. In Moss v. U.S. Secret Service, the Ninth Circuit 2 elucidated adequate pleading standards post Twombly. 572 F.3d 962 (9th Cir. 2009). It 3 observed: [4] Prior to Twombly, a complaint would not be found deficient if it alleged a set 5 of facts consistent with a claim entitling the plaintiff to relief. Under the Court's latest pleadings cases, however, the facts alleged in a complaint must [6] state a claim that is plausible on its face. As many have noted, this is a 7 significant change, with broad-reaching implications. [8] 572 F.3d at 972 . 9 Plaintiff has repeatedly proffered insufficient allegations to state claims for equal 10 protection and Title VII violations. The gravamen of his FAC utilizes conclusory 11 statements, unwarranted deductions of fact, and unreasonable inferences in an attempt to 12 outline valid claims. The factual content he has sufficiently alleged falls far short of the 13 employment discrimination of which he complains. The Court finds that Plaintiff has 14 failed to supply new facts which would entitle him to relief and that he has only provided 15 questionable theories of violations and no satisfactory explanation for his failure to fully 16 develop his original allegations. Accordingly, the Court sees no point in granting Plaintiff 17 leave to amend his complaint and dismisses his claims with prejudice. [28] 1 IT IS ORDERED: 2 1. Defendants’ Motion to Dismiss First Amended Complaint (Doc. 35) is 3 GRANTED. 4 2. Plaintiff's equal protection claim and Title VII disparate treatment claim are 5 DISMISSED. 6 3. The Clerk of Court is instructed to close this case. [7] 8 Dated this 14th day of September, 2021. [9] 10 Lot, a seesont 11 Honorable Cin . J6fgenson United States District Judge [28] -12-