1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 COLETTE CALMELET, No.: 2:19-cv-02537-MCE-DMC 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 BOARD OF TRUSTEES OF THE

CALIFORNIA STATE UNIVERSITY;

15 DAVID M. HASSENZAHL, Personally and in his Official Capacity as Dean of 16 the College of Natural Sciences at California State University, Chico; 17 RICHARD L. FORD, Personally and in his Official Capacity of Department 18 Chair of the Department of Mathematics and Statistics at California 19 State University, Chico, and DEBRA S. LARSON, Personally and in her Official 20 Capacity as Provost of California State University, Chico, 21 Defendants. 22 23 Plaintiff Colette Calmelet (“Plaintiff”) filed this lawsuit under Title VII of the Civil 24 Rights Act of 1964 and 42 U.S.C. § 1983, claiming that Defendants violated her civil 25 rights when they racially discriminated and retaliated against her for authoring a 26 dissenting viewpoint about a tenure-track faculty member. Now before the Court is 27 Defendants’ Motion to Dismiss Count Two—Retaliation for the Exercise of Academic 28 Freedom—of Plaintiff’s First Amended Complaint (“FAC”), brought under Federal Rule of 1 Civil Procedure 12(b)(6) on grounds that Count Two fails to state a claim upon which 2 relief can be granted. Defendants further argue, to the extent Plaintiff has stated a 3 viable retaliation claim in Count Two, that the individually-named Defendants are entitled 4 to qualified immunity and that the Eleventh Amendment to the United States Constitution 5 precludes Defendants from being sued in their official capacities except to the extent 6 Plaintiff seeks prospective injunctive relief.1 Finally, Defendants claim that Plaintiff has 7 not asserted sufficient factual allegations to state a viable retaliation claim against 8 Defendant Debra Larson in any event. For the reasons set forth below, Defendants’ 9 Motion (ECF No. 14) is GRANTED. 10 11 BACKGROUND2 12 13 Plaintiff is a faculty member in the Department of Mathematics and Statistics at 14 Defendant California State University, Chico (“CSU Chico”). Pl.’s FAC, ECF No. 13, at 15 ¶ 1. During the 2017–18 academic year, Plaintiff served as the Chair of the 16 Departmental Personnel Committee. Id. at ¶ 23. After completing a Performance 17 Review for a tenure-track professor, Plaintiff disagreed with the Committee’s final 18 evaluation. Id. at ¶ 26. Plaintiff recorded her disagreements with the candidate’s final 19 evaluation in a Minority Report (“Report”)—which is within her right as a Committee 20 member. Id. The purpose of the Report was to highlight Plaintiff’s conflicting evaluation 21 of the candidate’s performance, as well as to provide developmental feedback to the 22 candidate. Id. 23 Defendant David Hassenzahl (“Hassenzahl”), CSU Chico’s Dean of the College of 24 Natural Sciences, subsequently accused Plaintiff of including inaccurate information 25

1 In her Opposition, Plaintiff agrees that her claims against Defendants in their official capacities 26 are limited to prospective injunctive relief only. Pl.’s Am. Opp., ECF No. 22, 8:6-11. Consequently, Defendants’ argument in that regard will not be further considered in this Memorandum and Order. 27

2 The following of recitation of facts is taken, sometimes verbatim, from Plaintiff’s FAC. ECF 28 No. 13. 1 within the Report and demanded that Plaintiff remove most of her opinions. Id. at ¶ 27. 2 In addition, Hassenzahl sent his demand that Plaintiff censor her Report to the entire 3 Departmental Personnel Committee, the Department Chair, the College Personnel 4 Committee Chair, and the Dean’s Assistant. Id. Although Plaintiff complied with 5 Hassenzahl’s demands, Hassenzahl and Defendant Richard Ford (“Ford”), the Chair of 6 CSU Chico’s Department of Mathematics and Statistics, met with Plaintiff on February 7, 7 2018, and accused her of creating problems in the review process and providing false 8 information in the Report. Id. at ¶ 29. 9 A few days after Plaintiff’s meeting with Defendants Hassenzahl and Ford, 10 Hassenzahl claimed that Plaintiff breached confidentiality in her Report and 11 subsequently suspended Plaintiff from her position as Chair of the Departmental 12 Personnel Committee on February 12, 2018. Id. at ¶ 31. When Plaintiff debunked 13 Hassenzahl’s falsified breach of confidentiality claim, Hassenzahl withdrew that claim 14 and raised two new accusations against Plaintiff: first, that Plaintiff caused a large 15 number of process errors, and second, that her Reports were inconsistent. Id. at ¶ 32. 16 On February 14, 2018, two days after Hassenzahl’s new accusations, and while 17 Plaintiff was sick and absent from campus, Hassenzahl and Ford directed the 18 Departmental Personnel Committee to remove Plaintiff from her position as Chair. Id. at 19 ¶ 33. Ultimately, and without basis in CSU Chico policy or procedure, the Departmental 20 Personnel Committee complied with that directive by removing Plaintiff from her position 21 as Committee Chair. Id. 22 Later in 2018, the Departmental Personnel Committee, the Department Chair, the 23 College Personnel Committee, CSU Chico’s Dean, and its President agreed to deny 24 Plaintiff’s promotion to Full Professor. Id. at ¶¶ 42, 67. The Majority Report filed in 25 support of that decision cited Plaintiff’s abrupt departure as Chair of the Departmental 26 Personnel Committee as one of the two reasons to withhold Plaintiff’s promotion. Id. at 27 ¶ 42. The other reason was Plaintiff’s incomplete evidence of quality of service. Id. 28 /// 1 Plaintiff subsequently filed her FAC on March 3, 2020, and alleged three claims. 2 First, Plaintiff, who is black, claims she was discriminated against on the basis of her 3 race. Second, she alleges retaliation for the exercise of her academic freedom in 4 violation of the First Amendment. Third and finally, Plaintiff asserts she was also 5 retaliated against for filing a complaint of racial discrimination with the United States 6 Equal Opportunity Commission. Id. at pgs. 11, 14, 16. Defendants’ Motion to Dismiss 7 Count Two of Plaintiff’s FAC, for First Amendment retaliation, followed and is now before 8 the Court for adjudication. 9 10 STANDARD 11 12 On a motion to dismiss for failure to state a claim under Federal Rule of Civil 13 Procedure 12(b)(6), all allegations of material fact must be accepted as true and 14 construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. 15 Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) requires only “a short and plain 16 statement of the claim showing that the pleader is entitled to relief” in order to “give the 17 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 18 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 19 47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require 20 detailed factual allegations. However, “a plaintiff’s obligation to provide the grounds of 21 his entitlement to relief requires more than labels and conclusions, and a formulaic 22 recitation of the elements of a cause of action will not do.” Id. (internal citations and 23 quotations omitted). A court is not required to accept as true a “legal conclusion 24 couched as a factual allegation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) 25 (quoting Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right 26 to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan 27 Wright & Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating 28 /// 1 that the pleading must contain something more than “a statement of facts that merely 2 creates a suspicion [of] a legally cognizable right of action.”)). 3 Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket 4 assertion, of entitlement to relief.” Twombly, 550 U.S. at 556 n.3 (internal citations and 5 quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard 6 to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of 7 the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. (citing 5 Charles 8 Alan Wright & Arthur R. Miller, supra, at § 1202). A pleading must contain “only enough 9 facts to state a claim to relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . 10 have not nudged their claims across the line from conceivable to plausible, their 11 complaint must be dismissed.” Id. However, “[a] well-pleaded complaint may proceed 12 even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a 13 recovery is very remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 14 232, 236 (1974)). 15 A court granting a motion to dismiss a complaint must then decide whether to 16 grant leave to amend. Leave to amend should be “freely given” where there is no 17 “undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice 18 to the opposing party by virtue of allowance of the amendment, [or] futility of the 19 amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v. 20 Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to 21 be considered when deciding whether to grant leave to amend). Not all of these factors 22 merit equal weight. Rather, “the consideration of prejudice to the opposing party . . . 23 carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 24 185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that 25 “the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group, 26 Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006, 27 1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 28 /// 1 1989) (“Leave need not be granted where the amendment of the complaint . . . 2 constitutes an exercise in futility . . . .”)). 3 4 ANALYSIS 5 6 In order to determine whether Plaintiff has stated a viable First Amendment 7 retaliation claim, the Court must consider the following five questions: 8 (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public 9 employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment 10 action; (4) whether the state had an adequate justification for treating the employee differently from other members of the 11 general public; and (5) whether the state would have taken the adverse employment action even absent the protected 12 speech. 13 Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Plaintiff has the burden of showing 14 the first three elements. Id. at 1070–71. If she is successful in so doing, the burden 15 shifts to Defendants to show the remaining two elements. Id. at 1071–72. Each element 16 is necessary. Dahlia v. Rodriguez, 735 F.3d 1060, 1092 n.4 (9th Cir. 2013). In other 17 words, a failure to show one element results in the dismissal of Plaintiff’s claim. 18 Desrochers v. City of San Bernardino, 572 F.3d 703, 719 (9th Cir. 2014) (holding that the 19 failure to meet the public concern element resulted in the dismissal of the First 20 Amendment Retaliation claim). As shown below, Plaintiff fails to meet the threshold 21 element—namely, her Report does not relate to a matter of public concern invoking 22 protection under the First Amendment 23 A. Plaintiff’s Report Does Not Touch Upon a Public Concern 24 Determining whether speech pertains to a public concern for First Amendment 25 purposes is a question of law, not fact. Johnson v. Poway Unified Sch. Dist., 658 F.3d 26 954, 964 (9th Cir. 2011) (citing Connick v. Myers, 461 U.S. 138, 148 n.7 (1983)). 27 Speech touches upon a matter of public concern when the speech “fairly can be said to 28 relate to ‘any matter of political, social, or other concern to the community.’” Id. (quoting 1 Huppert v. City of Pittsburg, 574 F.3d 696, 703 (9th Cir. 2009)). In other words, whether 2 the speech involves ‘“issues about which information is needed or appropriate to enable 3 the members of society to make informed decisions about the operation of their 4 government’” must be considered. Desrochers, 572 F.3d at 710 (quoting McKinley v. 5 Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983)). Speech is not of public concern when it 6 deals with “individual personnel disputes and grievances and . . . would be of no 7 relevance to the public’s evaluation of the performance of governmental agencies.” 8 Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) (quoting McKinley v. Eloy, 9 705 F.2d 1110, 1114 (9th Cir. 1983)). Ultimately, determining whether speech qualifies 10 for First Amendment protection requires an analysis of its content, form, and context. 11 Connick v. Myers, 461 U.S. 138, 147 (1983). Of these three considerations, content is 12 the most important. Johnson, 658 F.3d at 965. 13 Applying this analysis to the present matter, Plaintiff’s Report does not touch upon 14 matters of public concern. The content of Plaintiff’s Report outlines differences in 15 opinion between Plaintiff and the majority of the Departmental Personnel Committee 16 regarding its evaluation of a tenure-track professor’s performance. FAC ¶ 26. Thus, the 17 dispute falls squarely into an “individual personnel dispute and grievance” which does 18 not relate to a public concern. Coszalter v. City of Salem, 320 F.3d at 973. 19 Plaintiff nonetheless argues the Report documented a desire on her part to 20 ensure that candidates for tenure receive a fair evaluation process and acquire the 21 necessary mentoring. Pl.’s Am. Mem. P. & A. in Opp’n Defs.’ Mtn. Dismiss, ECF No. 22, 22 at 4:16–21. Plaintiff analogizes her case to Demers v. Austin to show that the content of 23 her Report addressed “the preferable manner of operating the school system” and thus 24 constituted a public concern. Demers v. Austin, 746 F.3d 402, 416 (9th Cir. 2014). In 25 Demers, a professor distributed a 7-step plan that recommended seven steps to improve 26 the communications program at Washington State University. Id. Notably, the 7-step 27 plan “made broad proposals to change the direction and focus of the school” rather than 28 “focus on personnel issue[s] or internal dispute[s].” Id. Moreover, the 7-step plan did not 1 “address the role of particular individuals . . . or voice personal complaints.” Id. Here, 2 Plaintiff’s argument is inapposite because the content of her Report solely focused on 3 internal personnel issues of a particular candidate, rather than the overall structure or 4 direction of CSU Chico. FAC ¶ 26. Additionally, Plaintiff’s Report did not expose any 5 governmental wrongdoing or corruption within CSU Chico that establish the Report as a 6 matter of public concern. See Dahlia, 735 F.3d at 1067– 68 (citing cases that found 7 speech touched upon a public concern when the speech exposed illegal activity or 8 corruption within a government agency). 9 Furthermore, the form of Plaintiff’s Report erodes any claim that the Report 10 touches upon a matter of public concern. Speech limited to a private audience, rather 11 than expressed publicly, ‘“weighs against a claim of protected speech.”’ Desrochers, 12 572 F.3d at 714 (quoting Roe v. City & County of San Francisco, 109 F.3d 578, 585 13 (9th Cir. 1997)). Views expressed “inside [an employee’s] office, rather than publicly, is 14 not dispositive,” however, in finding that speech is not protected. Garcetti v. Ceballos, 15 547 U.S. 410, 420 (2006). 16 Here, Plaintiff published her Report for two groups to read: the candidate for 17 tenure and the Departmental Personnel Committee. The fact that the Report 18 consequently has a very limited intended, and actual, audience diminishes Plaintiff’s 19 argument that it touches upon a matter of public concern. The Report was neither 20 available, nor addressed, to the public. See Demers, 746 F.3d at 416 (highlighting that 21 Demers sent his 7-step plan to the President and Provost of Washington State 22 University, “to other faculty members, to alumni, to friends . . . to newspapers,” and 23 published it on his website). 24 Finally, the context of the Report suggests Plaintiff did not intend for the Report to 25 reach the public’s eye. To determine the context of the speech, an inquiry into the 26 employee’s motivation for making the speech is highly relevant. Desrochers, 572 F.3d at 27 714 (citing Gilbrook v. City of Westminister, 177 F.3d 839, 866 (9th Cir. 1999)). 28 Specifically, “whether the speech was made to ‘further some private interest’” such as 1 dissatisfaction with an employment situation, and “whether the speech was made in the 2 context of a workplace ‘power struggle.’” Id. Plaintiff’s stated purpose for her Report, as 3 articulated in the FAC, was to highlight the difference between Plaintiff’s and the 4 Committee’s evaluation of a tenure-track professor. FAC ¶ 26. Therefore, the context of 5 Plaintiff’s Report was her disapproval of an individual employment action that ultimately 6 led to a workplace power struggle between Hassenzahl and Plaintiff. That context does 7 not fall within the purview of a public concern. 8 Given that Plaintiff fails to establish the threshold element of a First Amendment 9 retaliation claim, the Court does not need to consider the further elements required to 10 state a viable retaliation claim, and it declines to do so. See Desrochers, 572 F.3d at 11 719. Nor is it necessary to determine whether, in the event Plaintiff was successful in 12 stating a retaliation claim, that claim was subject to qualified immunity on the part of the 13 individual Defendants or stated sufficient facts against Defendant Larson. Those 14 contentions all presuppose the viability of a First Amendment retaliation claim, which 15 Plaintiff has failed to yet demonstrate. 16 17 CONCLUSION 18 19 For all the foregoing reasons, Defendants’ Motion to Dismiss, ECF No. 14, is 20 GRANTED, with leave to amend.3 Should Plaintiff wish to rectify the deficiencies of her 21 Second Count, she may do so by filing a Second Amended Complaint not later than 22 twenty (20) days following the date this Memorandum and Order is electronically filed. 23 /// 24 /// 25 /// 26 /// 27 3 Having determined that oral argument was not of material assistance, the Court submitted this 28 matter on the briefs in accordance with E.D. Local Rule 230(g).

AOE □□ MOE OIVING IVINS OO I OA AV VT AY

1 | Failure to file an amended pleading within those parameters will result in the dismissal of 2 | Plaintiff's Second Count with prejudice and without further notice. 3 IT |S SO ORDERED. 4 | Dated: September 3, 2020 ° Whip AX XC - 6 SENIOR UNITED STATES URTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10